[Federal Register Volume 81, Number 8 (Wednesday, January 13, 2016)]
[Rules and Regulations]
[Pages 1762-1800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00147]
[[Page 1761]]
Vol. 81
Wednesday,
No. 8
January 13, 2016
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 600 and 622
Fisheries of the Caribbean, Gulf, and South Atlantic; Aquaculture;
Final Rule
Federal Register / Vol. 81 , No. 8 / Wednesday, January 13, 2016 /
Rules and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 600 and 622
[Docket No. 080225276-5601-02]
RIN 0648-AS65
Fisheries of the Caribbean, Gulf, and South Atlantic; Aquaculture
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement the Fishery
Management Plan for Regulating Offshore Aquaculture in the Gulf of
Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management
Council (Council). The FMP entered into effect by operation of law on
September 3, 2009. This final rule establishes a comprehensive
regulatory program for managing the development of an environmentally
sound and economically sustainable aquaculture fishery in Federal
waters of the Gulf of Mexico (Gulf), i.e., the Gulf exclusive economic
zone (EEZ). The purpose of this final rule is to increase the yield of
Federal fisheries in the Gulf by supplementing the harvest of wild
caught species with cultured product.
DATES: This rule is effective February 12, 2016.
ADDRESSES: Electronic copies of the FMP, which includes a final
programmatic environmental impact statement (FPEIS), a Regulatory
Flexibility Act analysis (RFA), and a regulatory impact review, along
with the supplement to the FPEIS (SFPEIS) and supplemental information
report (SIR), may be obtained from the Southeast Regional Office's
Aquaculture Web site (Web site) at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/aquaculture/.
Comments regarding the burden-hour estimates, clarity of the
instructions, or other aspects of the collection-of-information
requirements contained in this final rule may be submitted in writing
to Adam Bailey, Southeast Regional Office, NMFS, 263 13th Avenue South,
St. Petersburg, FL 33701; or, the Office of Management and Budget, by
email at [email protected], or by fax to 202-395-5806.
FOR FURTHER INFORMATION CONTACT: Jess Beck-Stimpert, 727-824-5301.
SUPPLEMENTARY INFORMATION: The aquaculture fishery in the Gulf is
managed under the FMP. The FMP was prepared by the Council and is being
implemented through regulations at 50 CFR part 622 under the authority
of the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act).
On June 4, 2009, NMFS published a notice of availability for the
FMP and requested public comment (74 FR 26829). On September 3, 2009,
the FMP entered into effect by operation of law. On that same date,
NOAA announced that it would develop a new National Aquaculture Policy
that would provide context for the FMP. On June 9, 2011, NOAA announced
the release of the final National Aquaculture Policy and NOAA's
intentions to move forward with rulemaking for the FMP. On August 28,
2014, NMFS published a proposed rule for the FMP and requested public
comment (79 FR 51424). The proposed rule and the FMP outline the
rationale for the actions contained in this final rule. A summary of
the actions implemented by this final rule is provided below.
The FMP was developed under the authority of the Magnuson-Stevens
Act to regulate aquaculture operations in the Gulf EEZ. The FMP
provides a comprehensive framework for authorizing and regulating
offshore aquaculture activities. The FMP also establishes a
programmatic approach for evaluating the potential impacts of
aquaculture operations in the Gulf.
Gulf Aquaculture Permits
This final rule requires persons who want to conduct select
aquaculture activities in the Gulf exclusive economic zone (EEZ) to
apply for and obtain a Gulf aquaculture permit. This permit authorizes
the operation of an offshore aquaculture facility in the Gulf EEZ and
allows the sale of allowable aquaculture species cultured at an
offshore aquaculture facility in the Gulf EEZ. Persons issued a Gulf
aquaculture permit are authorized to harvest, or designate hatchery
personnel or other entities to harvest, and retain live wild broodstock
of an allowable aquaculture species, and to possess or transport
cultured species in, to, or from an offshore aquaculture facility in
the Gulf EEZ. Permit eligibility is limited to U.S. citizens and
permanent resident aliens. Gulf aquaculture permits are transferable as
long as the geographic location of the aquaculture facility site
remains unchanged and all applicable permit requirements are satisfied
and up-to-date at the time of transfer. The Gulf aquaculture permit is
effective for 10 years and must be renewed in 5-year increments
thereafter to remain valid. The initial permit application fee is
$10,000, and a $1,000 fee is assessed annually, to cover the
administrative costs of issuing permits and reviewing permit activities
that are reported annually. The renewal application fee is $5,000.
These fees are based on the NOAA Finance Handbook. A valid Gulf
aquaculture permit must be prominently displayed and available at the
aquaculture facility. An aquaculture facility is defined broadly at 50
CFR part 622.2 as an installation of a structure, including any
aquaculture system(s) (including moorings), hatcheries, equipment, and
associated infrastructure used to hold, propagate, and rear allowable
aquaculture species in the Gulf EEZ under the authority of a Gulf
aquaculture permit. For those parts of the aquaculture facility that
are deployed in the water, the permit holder may choose to comply with
the requirement to display the Gulf aquaculture permit by marking the
gear with the permit number. A copy of a valid Gulf aquaculture permit
signed by the permit owner must be in the possession of any person who
possesses live wild broodstock of an allowable aquaculture species, or
who possesses or transports cultured species in, to, or from an
offshore aquaculture facility in the Gulf EEZ.
A dealer who receives species cultured at an offshore aquaculture
facility in the EEZ is required to have a Gulf aquaculture dealer
permit. As defined in 50 CFR 600.10, dealer means the person who first
receives fish by way of purchase, barter, or trade. The fee for a Gulf
aquaculture dealer permit fee is $50.00 (if the person applies for a
single permit) or $12.50 (if the person applies for the Gulf
aquaculture dealer permit in conjunction with another type of permit)
to cover the administrative costs of permit issuance. Dealer permits
are issued annually and must be prominently displayed and available on
the dealer's premises. A Gulf aquaculture dealer permit is not
transferable.
Electronic System Requirements, Account Setup, and Information
The administrative functions associated with this aquaculture
program, such as account setup, landing transactions, and reporting,
are to be accomplished online; therefore, all permittees need access to
a computer and the Internet to participate. NMFS will mail permittees
information and instructions for setting up an online aquaculture
account and using the online system, upon issuance of a Gulf
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aquaculture permit or a Gulf aquaculture dealer permit. Assistance with
online functions is available from the Permits Office, Monday through
Friday between 8 a.m. and 4:30 p.m. eastern time.
Additionally, the NMFS Southeast Regional Administrator (RA) will
provide each aquaculture permittee with paper forms for complying with
the basic reporting requirements of the aquaculture program when use of
such forms is authorized during catastrophic conditions. The RA will
determine when catastrophic conditions exist, the duration of the
catastrophic conditions, and which participants or geographic areas are
affected by the catastrophic conditions. The RA will provide timely
notice to affected participants and may authorize the affected
participants' use of paper forms for the duration of the catastrophic
conditions. Program functions are limited under the paper-based system.
Assistance in complying with the requirements of the paper-based system
is available via the Permits Office, Monday through Friday between 8
a.m. and 4:30 p.m. eastern time.
If some online functions are not available at the time of initial
implementation of this aquaculture program, participants may comply by
submitting the required information via email using the appropriate
forms that are available on the Web site. Once online functions are
available, participants must comply by using the online system unless
alternative methods are specified.
Application Requirements
Applications for a Gulf aquaculture permit are available from the
RA or from the Web site. Applicants must complete and submit the
application form and all required supporting documents to the RA at
least 180 days prior to the date they desire the permit to be
effective. Information required as part of the application package
includes: Name of business, name of applicant, hatchery contact
information, documentation of U.S. citizenship or resident alien
status, a baseline environmental survey of the proposed site conducted
consistent with the guidance specified by NMFS and available on the Web
site, a description of the geographic location and dimensions of the
aquaculture facility and site, a description of the equipment,
aquaculture systems, and methods to be used for grow-out (time period
from when an organism is stocked into offshore systems until it is
harvested for market), a list of species to be cultured, estimated
production levels of each species to be cultured, and a copy of an
emergency disaster plan (an emergency plan in the event of a disaster).
The applicant is required to obtain an assurance bond sufficient to
cover the costs associated with removing all components of the
aquaculture facility, including cultured animals, if permittees fail to
do so when ordered by NMFS.
The applicant is required to provide a document certifying that all
broodstock or progeny of such broodstock will be or were originally
harvested from U.S. waters of the Gulf, will be or were harvested from
the same population or sub-population that occurs where the facility is
located, and that no genetically engineered or transgenic animals will
be used or possessed at the aquaculture facility. The purpose of these
requirements is to ensure that the genetic make-up of cultured animals
is similar to the wild stocks where the facility is located. As defined
in Sec. 622.2 of this final rule, genetically engineered animals are
those modified by rDNA techniques, including the entire lineage of
animals that contain the modification. The term `genetically engineered
animal' can refer to both animals with heritable rDNA constructs and
animals with non-heritable rDNA constructs (e.g., those modifications
intended to be used as gene therapy). Also defined in Sec. 622.2 of
this final rule, transgenic animals are those whose genome contains a
nucleotide sequence that has been intentionally modified in vitro, and
the progeny of such an animal.
The applicant is required to provide a copy of the contractual
agreement with a certified aquatic animal health expert. An aquatic
animal health expert is defined as a licensed doctor of veterinary
medicine or a person who is certified by the American Fisheries
Society, Fish Health Section, as a ``Fish Pathologist'' or ``Fish
Health Inspector.''
Prior to issuance of a Gulf aquaculture permit, permit applicants
must provide NMFS a copy of valid Federal permits (e.g., Army Corps of
Engineers (ACOE) Section 10 permit, and Environmental Protection Agency
(EPA) National Pollutant Discharge Elimination System (NPDES) permit)
and authorizations applicable to the proposed aquaculture site,
facilities, or operations. Permit applicants do not need to provide
copies of these valid Federal permits as part of their Gulf aquaculture
permit application.
Public Comment Process Regarding Gulf Aquaculture Permit Applications
After the RA has determined an application to be complete, NMFS
will announce its receipt of the application in the Federal Register.
The public will be provided up to 45 days to comment on the application
and comments will be requested during public testimony at a Council
meeting. The RA may consult with the Council on the permit application
and will offer the applicant an opportunity to appear in support of the
application at a Council meeting. After public comment ends and
comments are reviewed, the RA will notify the applicant and the Council
in writing of the decision to issue or deny the Gulf aquaculture
permit. Reasons the RA may deny a permit might include: The applicant
fails to disclose material information or includes false statements of
material facts; the RA determines that issuing the permit would pose
significant risk to marine resources, public health, or safety, or
conflict with established or potential oil and gas infrastructure,
access to outer continental shelf (OCS) energy or marine mineral
resources, safe transit to and from infrastructure, or future
geological and geophysical surveys; or the RA determines the
application proposes activities that are inconsistent with the
objectives of the FMP, Magnuson-Stevens Act, or other applicable laws.
The RA also may consider revisions to the application made by the
applicant in response to public comment before approving or denying the
Gulf aquaculture permit request.
Consultation With Other Federal Agencies
The RA will consult with Federal agencies as appropriate, to
address and resolve any conflicts regarding use of the OCS for
aquaculture, with special emphasis on OCS energy programs for resolving
and documenting the proposed solution of existing conflicts.
Consultation will occur when working with potential permittees during
the pre-application stage of the permit process and when evaluating
potentially relevant conflicts or issues identified through the permit
application review process. The RA will consult with Federal agencies,
as appropriate, prior to making a decision to approve or deny a permit.
Operational Requirements, Monitoring Requirements, and Restrictions
Permittees must abide by operational requirements, monitoring
requirements, and restrictions, as specified in the regulations
applicable to aquaculture (50 CFR part 622 and 40 CFR part 451). To
reduce the potential for speculative entry into the fishery, permittees
are required to place 25 percent of aquaculture systems approved for
use at
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a specific aquaculture facility in the water at the permitted site
within 2 years of permit issuance, and to place cultured animals in
aquaculture systems at the site within 3 years of permit issuance.
Permittees may request a 1-year extension of these deadlines in the
event of a catastrophe (e.g., hurricane). Failure to comply with any of
the operational requirements, monitoring requirements, or restrictions
is grounds for revocation of the permit.
Fingerlings or other juvenile animals obtained for grow-out at an
aquaculture facility in the EEZ must be obtained from a hatchery
located in the U.S. All broodstock used for spawning at a hatchery
supplying fingerlings or other juvenile animals to an aquaculture
facility in the Gulf EEZ must be certified by the hatchery owner as
having been marked or tagged (e.g., dart or internal wire tag). Prior
to stocking fish in approved aquaculture systems, the applicant must
provide NMFS with a copy of an animal health certificate signed by an
aquatic animal health expert certifying that the fish have been
inspected and are visibly healthy, and that the source population tests
negative for World Organization of Animal Health (OIE) pathogens
specific to the cultured species and for pathogens that are identified
as reportable pathogens in the National Aquatic Animal Health Plan
(NAAHP). This process must be repeated for each new stocking event.
The use of biologics, pesticides, and drugs must comply with all
applicable United States Department of Agriculture (USDA), EPA, and FDA
requirements. Use of aquaculture feeds must be conducted in compliance
with EPA feed monitoring and management guidelines (40 CFR 451.21).
Applicants also must comply with all monitoring and reporting
requirements specified in their EPA NPDES permit and their ACOE Section
10 permit. Additionally, NMFS requires permittees to inspect
aquaculture systems for entanglements or interactions with marine
mammals, protected species, and migratory birds. The frequency of
inspections will be specified by NMFS as a condition of the permit.
Permittees are required to monitor and report baseline environmental
survey data to NMFS in accordance with procedures specified by NMFS in
guidance available on the Web site.
The RA must approve all broodstock harvest activities before they
occur. At least 30 days before the date permittees intend to harvest
broodstock from the Gulf EEZ or Gulf state waters, the permittee or
permittee's designee must submit a request for broodstock harvest to
the RA. The request must include information on the number, size, and
species to be harvested, the methods, gear, and vessels to be used for
capturing, holding, and transporting broodstock, the date and specific
location of the intended harvest, and the location where the broodstock
will be delivered. Only gear and methods specified in 50 CFR 600.725
for the respective fishery may be used for harvest--except that rod-
and-reel may be used to harvest red drum. The RA may deny a request to
harvest broodstock if allowable methods or gear are not proposed for
use, the number of broodstock is larger than necessary for spawning and
rearing activities, or based on a determination the proposed activity
is inconsistent with FMP objectives or Federal laws. The RA will
provide the permittee a written determination regarding the approval or
denial of the broodstock harvest request. If a broodstock harvest
request is approved, the permittee will be required to submit a report
to the RA within 15 days of the date of harvest summarizing the number,
size, and species harvested, and identifying the location where the
broodstock were captured.
Remedial Actions by NMFS
Section 622.108 of this rule provides safeguards that address two
specific concerns identified by the Council during development of the
FMP: Pathogens and genetic issues.
Section 622.108(a)(1) provides that NMFS, in cooperation with the
USDA's Animal and Plant Health Inspection Service (APHIS), may order
movement restrictions and/or removal of all cultured animals upon
confirmation by the APHIS reference laboratory that the cultured
animals test positive for a reportable or emerging pathogen and pose a
threat to the health of wild or cultured animals.
Section 622.108(a)(2) provides that NMFS may sample cultured
animals to determine genetic lineage. If cultured animals are
determined to be genetically engineered or transgenic, then NMFS will
order the removal of all cultured animals for which such determination
applies. In conducting the genetic testing to determine that all
broodstock or progeny of such broodstock are originally harvested from
U.S. waters of the Gulf, are from the same population or sub-population
that occurs where the facility is located, and that juveniles stocked
in offshore systems are the progeny of wild broodstock, or other
genetic testing necessary to carry out the requirements of the FMP,
NMFS may enter into cooperative agreements with States, may delegate
the testing authority to any State, or may contract with non-Federal
Government entities. As a condition of the permit, NMFS may also
require the permittee to contract a non-Federal Government third party
approved by the RA to conduct such genetic testing if the RA agrees to
accept the third party testing results. The non-Federal Government
third party may not be the same entity as the permittee.
In addition to the actions specified above, NMFS has the authority
to issue emergency rules to address unforeseen events that present
serious conservation or management problems. See 16 U.S.C. 1855(c);
NMFS Policy Guidelines for the Use of Emergency Rules (62 FR 44421,
August 21, 1997). An emergency rule is generally in effect for a
limited time but could remain in effect for an extended period if the
rule is responding to a public health issue or an oil spill. See 16
U.S.C. 1855(c)(3)(C). If warranted under the circumstances, appropriate
measures could also be established through an FMP amendment prepared by
the Council, or by the Secretary of Commerce if the Council fails to
develop such an amendment. Any measures established in an FMP amendment
would remain in effect until modified. Additionally, in the event of a
significant unexpected problem requiring urgent action to protect
public health, interest, or safety, NMFS may consider withdrawing,
suspending, revoking, or annulling a permit pursuant to the
Administrative Procedure Act, 5 U.S.C. 558(c).
Biological Reference Points, Status Determination Criteria, Annual
Catch Limits and Accountability Measures
Consistent with National Standard 1 of the Magnuson-Stevens Act and
the National Standard 1 Guidelines, the FMP specifies biological
reference points, status determination criteria, annual catch limits
and accountability measures. The FMP establishes an annual catch limit
(ACL) for offshore aquaculture in the Gulf EEZ of 64 million lb (29
million kg), round weight, which is equal to optimum yield (OY) and
maximum sustainable yield (MSY) specified by the Council. This maximum
level of harvest represents the average landings of all marine species
in the Gulf, except menhaden and shrimp, between 2000-2006. Also, the
FMP limits a person, corporation, or other entity from producing,
annually, more than 20 percent of the total annual ACL (12.8 million lb
(5.8 million kg), round weight) for offshore aquaculture in the Gulf
EEZ, to ensure entities do not obtain an excessive share of the ACL.
If the total annual ACL is exceeded in a given year, NMFS will
publish a control date in the Federal Register, and
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entry into the aquaculture fishery may be limited or prohibited after
that control date. The control date will serve as an accountability
measure while the Council initiates review of the Gulf aquaculture
program and biological reference points.
The FMP recognizes that thresholds for determining overfishing and
overfished status are used as proxies to assess the effect of the
aquaculture fishery upon wild stocks. Thus, they are not directly
applicable to the cultured fish but it is conceivable that some level
of aquaculture in the Gulf could result in adverse impacts to wild
stocks, which could result in overfishing and depletion of such stocks.
Thus, the FMP also specifies overfished and overfishing criteria
established in existing FMPs for wild stocks, consistent with the
provisions at 50 CFR 600.310(d)(7). These thresholds are used by NMFS
to determine if offshore aquaculture in the Gulf EEZ is adversely
affecting wild populations, causing them to become overfished or
undergo overfishing. If aquaculture operations are determined to cause
such effects, then the Council and NMFS will take action(s) that could
include, but is not limited to, reducing aquaculture production levels,
removing cultured animals containing pathogens, and reevaluating
facility siting locations to avoid habitat degradation.
Measures To Enhance Enforceability
Permittees are required to provide NMFS personnel and authorized
officers (as defined in 50 CFR 600.10) access to their aquaculture
facilities and records to conduct inspections and determine compliance
with applicable regulations relating to Gulf aquaculture in the EEZ. In
conducting the inspections, NMFS may enter into cooperative agreements
with States, may delegate the inspection authority to any State, or may
contract with non-Federal Government entities. As a condition of the
permit, NMFS may also require the permittee to contract a non-Federal
Government third party approved by the RA to conduct such inspections
if the RA agrees to accept the third party inspection results. The non-
Federal Government third party may not be the same entity as the
permittee.
Permittees participating in the aquaculture program are allowed to
offload cultured animals at aquaculture dealers only between 6 a.m. and
6 p.m., local time. All fish landed on shore are required to be
maintained whole with heads and fins intact. Spiny lobster are required
to be maintained whole with tail intact until landed ashore. Any
cultured animals harvested from an aquaculture facility and being
transported are required to be accompanied by the applicable bill of
lading through offloading and the first point of sale.
Any person transporting cultured fingerlings or other juvenile
animals from a hatchery to an aquaculture facility, other than from a
hatchery that is integrated with an aquaculture facility, is required
to notify NMFS at least 72 hours prior to transport. Permittees are
also required to notify NMFS at least 72 hours prior to harvest of
cultured animals at an aquaculture facility and notify NMFS at least 72
hours prior to the intended time of landing. The harvest notification
includes the time, date, and weight of cultured animals to be
harvested. The landing notification includes the time, date, and port
of landing. These notifications are required to be provided to NMFS by
calling the telephone number or accessing the Web-based form on the Web
site.
Any vessel transporting cultured animals to or from an aquaculture
facility is required to stow fishing gear below deck or in an area
where it is not normally used or readily available for fishing.
Possession of any wild fish, with the exception of broodstock
associated with a hatchery in the Gulf EEZ, is prohibited within the
boundaries of an aquaculture facility's restricted access zone as
specified in Sec. 622.104. Except when harvesting broodstock, the
possession of wild fish aboard an aquaculture operation's transport and
service vessels, vehicles, or aircraft is prohibited. Stowage
requirements and possession restrictions are intended to enhance
enforcement by preventing the simultaneous possession of cultured and
wild fish.
Species Allowed for Aquaculture
The FMP allows owners and operators of aquaculture facilities in
the Gulf EEZ to culture all species native to the Gulf that are managed
by the Council in a fishery management unit (FMU) under a current FMP,
except those species in the shrimp and coral FMU's. As explained in the
preamble to the proposed rule, prior to the FMP, offshore aquaculture
in the Gulf EEZ, other than live rock aquaculture, could only be
authorized by an exempted fishing permit (EFP) from NMFS. Anyone
wishing to culture species in the Gulf EEZ that are not allowable
aquaculture species as specified in the FMP and at Sec. 622.105(b)
must apply for an EFP (see regulations at 50 CFR 600.745). Under the
FMP, no genetically engineered or transgenic animals may be cultured in
the Gulf.
Allowable Aquaculture Systems for Grow-Out
Aquaculture systems used for growing fish will be evaluated and
approved by the RA on a case-by-case basis. The structural integrity
and ability of aquaculture systems to withstand physical stresses
associated with major storm events (e.g., hurricanes) will be reviewed
by the RA, using engineering analyses, computer and physical
oceanographic models, or other required documentation. The RA will
evaluate the potential risks of aquaculture systems to essential fish
habitat (EFH), endangered or threatened species, marine mammals, wild
fish stocks, public health, and safety. The RA will consider the
significance of any such risks in determining whether to approve or
deny an aquaculture system. If the RA denies use of an aquaculture
system, then the applicant will be provided a written determination
from the RA of such findings. Each aquaculture system approved for use
must be marked with a minimum of one properly functioning locating
device (e.g., global positioning system device) to assist in locating
the system in the event it is damaged or lost. The U.S. Coast Guard
(USCG) also requires structures to be marked with lights and signals to
ensure compliance with private aids to navigation (33 CFR 66.01).
Siting Requirements and Conditions
Aquaculture facilities are prohibited in Gulf EEZ marine protected
areas, marine reserves, habitat areas of particular concern (HAPCs),
Special Management Zones, permitted artificial reef areas, and coral
areas specified in 50 CFR part 622. No aquaculture facility may be
sited within 1.6 nm (3 km) of another aquaculture facility. Permit
sites must be twice as large as the combined area encompassed by the
approved aquaculture systems to allow for best management practices
such as the rotation of systems for fallowing. The RA will evaluate
proposed sites on a case-by-case basis. Siting criteria include but are
not limited to the following: Results of the baseline environmental
survey; site depth; frequency of harmful algal blooms or hypoxia; and
location of the site relative to marine mammal migratory pathways,
important natural habitats, and fishing grounds. The RA may deny use of
a proposed aquaculture site based on a determination that the proposed
site: Would pose significant risks to EFH, or to endangered or
threatened species; would result in user conflicts with commercial or
recreational fishermen or with other marine resource users; would
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pose risk to the cultured species due to low dissolved oxygen or
harmful algal blooms; is not of sufficient depth for the approved
aquaculture system; is characterized by substrate and currents that
would inhibit the dispersal of wastes and effluents; or is otherwise
inconsistent with FMP objectives or applicable Federal laws.
Aquaculture Facility Restricted Access Zones
A restricted access zone will be established for each facility. The
boundaries of the restricted access zone correspond to the coordinates
listed on the approved ACOE Section 10 permit for the site. Restricted
access zone boundaries must be clearly marked with a floating device,
such as a buoy. No recreational or commercial fishing, other than
aquaculture, may occur within the restricted access zone. Only fishing
vessels that have a copy of the aquaculture facility's permit with an
original signature of the permittee are allowed to operate in or
transit through the restricted access zone.
Recordkeeping and Reporting Requirements
Gulf aquaculture permittees are required to report to NMFS major
escapement events; findings of reportable pathogens; and entanglements
or interactions with marine mammals, protected species, or migratory
birds. All of these events must be reported within 24 hours of
discovery of the event. Major escapement is defined as the escape,
within a 24-hour period, of 10 percent of the fish from a single
approved aquaculture system (e.g., one cage or one net pen) or 5
percent or more of the fish from all approved aquaculture systems
combined, or the escape, within any 30-day period, of 10 percent or
more of the fish from all approved aquaculture systems combined.
Reportable pathogens include any OIE pathogen or pathogens that are
identified as reportable pathogens in the NAAHP. If no major
escapement, finding of reportable pathogen, or entanglement or
interaction occurs during a given fishing year, then a permittee is
required to submit by January 31 of the following year an annual report
to the RA indicating no event occurred. If major escapement occurs, the
permittee is required to provide to NMFS the contact and permit
information for the facility at which the escapement occurred, the
duration and location of escapement, the cause(s) of escapement, the
quantity, size, and percent of fish that escaped, by species; and
actions being taken to address the escapement and to prevent future
escapements. If an entanglement or interaction occurs, the permittee is
required to submit to NMFS information on the date, time, and location
of the event, the species involved, the number of mortalities or acute
injuries, causes of entanglement or interaction, and steps being taken
to address the entanglement or interaction. If reportable pathogens are
discovered, the permittee is required to provide NMFS information on
the reportable pathogen present, the percent of cultured animals
infected, the findings of the aquatic animal health expert, plans for
confirmatory testing, testing results (when available), and actions
being taken to address the pathogen episode.
In addition to the above-mentioned reporting requirements,
permittees are required to report to NMFS if there is a change to the
hatchery (or hatcheries) used for obtaining fingerlings or other
juvenile animals. Permittees are also required to report, to other
Federal agencies, the use of new animal drugs in accordance with 40 CFR
451.3.
For recordkeeping requirements, permittees must maintain and file
with NMFS valid copies of all state and Federal permits required for
conducting offshore aquaculture, as well as copies of state and Federal
permits for each hatchery from which fingerlings or other juvenile
animals are obtained. Also, aquaculture facilities must maintain the
following records for the most recent 3-year period: Monitoring reports
related to aquaculture activities required by state and Federal
permits; daily records of fish introduced or removed from each
aquaculture system; and original or copies of feed purchase invoices
and sale records. These records must be provided to NMFS or authorized
officers upon request.
Aquaculture dealers are required to complete a landing transaction
report when purchasing cultured animals from a Gulf aquaculture permit
holder. The transaction report includes the date, time, and location of
the transaction; the identities of the Gulf aquaculture permit holder,
vessel transporting cultured animals to port, and dealer involved in
the transaction; and the quantity, average price, and average weight of
each species landed and sold.
Framework Procedures
The RA may modify MSY, OY, permit application requirements,
operational requirements and restrictions, including monitoring
requirements, aquaculture system requirements, siting requirements, and
recordkeeping and reporting requirements in accordance with the
framework procedure in the FMP.
Comments and Responses
NMFS received over 1,100 submissions from the public on
Regulations.gov during the comment periods for the proposed rule and
FMP. NMFS has identified 115 unique comments from the public
submissions. These include comments responding to the eight issues NMFS
identified in the public participation section of the proposed rule.
Comments and responses on those eight issues are addressed in the
Public Participation Comments section below.
Public Participation Comments
Comment 1: NMFS requested public comment on the definition of
``significant risk'' as it pertains to offshore aquaculture in the Gulf
and whether it is a different standard than what is established under
the Endangered Species Act (ESA) (this corresponds to issue 1 in the
Public Participation section of the proposed rule). NMFS received
several comments on this proposed definition. Several commenters stated
the definition is adequate and another stated the threshold for denying
permits under this definition should be increased, giving NMFS less
discretion. In contrast, a few commenters requested the threshold for
significant risk be lowered, thereby making it easier for NMFS to deny
permit applications. One commenter also stated that ``significant
risk'' is not defined in the ESA but the term has been interpreted in
case law; specifically, Babbitt v. Sweet Home Chapter of Communities,
515 U.S. 687 (1995), in which the Supreme Court ruled that actual harm
must occur. Another commenter stated the term ``significant risk''
should focus on direct threats of actual harm, and not indirect,
insignificant, discountable, or extremely unlikely harm.
Response: After considering all of the comments received, NMFS has
determined that a more moderate threshold for ESA-listed species should
be included in the definition of ``significant risk.'' The proposed
definition linked the ESA criterion to the jeopardy and adverse
modification standards established in the ESA. In this final rule, NMFS
adopts a revised definition that will provide the RA discretion to deny
a Gulf aquaculture permit application or use of a proposed site or
aquaculture system, or specify conditions for an aquaculture system, if
it is determined to adversely affect ESA-listed species or their
critical habitat.
[[Page 1767]]
This revised definition is consistent with the original definition
deemed by the Council in February 2013 and makes the ESA-related
criterion in the definition consistent with those for marine mammals,
EFH, wild fish stocks and public health and safety. This revised
definition recognizes that ``significant risk'' means more than
insignificant or discountable (extremely unlikely) harm, but that
activities may present a ``significant risk'' even if they fall short
of jeopardizing the continued existence of an entire species or
destroying or adversely modifying their critical habitat.
NMFS does not agree that the Sweet Home decision is relevant to the
definition of ``significant risk'' in this rule. That decision focused
on whether the regulatory definition of ``harm,'' which included
``significant habitat modification or degradation,'' was reasonable and
within the Department of the Interior's authority.
Comment 2: NMFS requested public comment on the use of the term
``genetically modified organism'' in the rule and whether it should be
changed to ``genetically engineered animal'' to be consistent with
terminology used by FDA (this corresponds to issue 2 in the Public
Participation section of the proposed rule). NMFS also requested public
comment on whether the definition of ``genetically modified organism''
should be removed and a definition for ``genetically engineered
animal'' should be added to the rule, which is more consistent with the
definition used by FDA (this corresponds to issue 3 in the Public
Participation section of the proposed rule). NMFS received several
comments supporting these changes, one of which stated that this would
result in uniformity across Federal agencies. Another commenter opposed
these changes and supported the original terms and definitions, which
they felt were more restrictive.
Response: After considering these comments, NMFS is changing the
term ``genetically modified organism'' to ``genetically engineered
animal'' in this final rule as this is a more scientifically precise
term, more accurately describes the use of modern biotechnology, and is
consistent with FDA terminology.
NMFS is also adopting the FDA definition for ``genetically
engineered animal,'' which is defined as an ``animal modified by rDNA
techniques, including the entire lineage of animals that contain the
modification. The term `genetically engineered animal' can refer to
both animals with heritable rDNA constructs and animals with non-
heritable rDNA constructs (e.g., those modifications intended to be
used as gene therapy).'' An animal that has been altered such that its
ploidy (number of sets of chromosomes in its cells) has been changed
(e.g., a triploid animal (an animal with an extra set of chromosomes in
its cells)) is not considered to be genetically engineered provided
that that animal does not contain genes that have been introduced or
otherwise altered by modern biotechnology.
Comment 3: NMFS requested public comment on whether it would be
sufficiently protective to require broodstock to be collected from
another population within the Gulf, rather than the same population or
sub-population that occurs where the facility is located. NMFS also
asked the public to provide comment on any additional costs or burdens
this requirement would pose on aquaculture facilities (this corresponds
to issue 4 in the Public Participation section of the proposed rule).
NMFS received several comments which agreed that NMFS should keep the
requirement to harvest broodstock from the same population or
subpopulation where the facility is located. NMFS received comments
that this requirement would be an impediment to selective breeding and
the selection of traits that render individuals less fit to survive in
the wild.
Response: NMFS has determined that it is appropriate to keep the
requirement to collect broodstock from the same population or
subpopulation where the facility is located. The purpose of this
requirement is to ensure that the genetic make-up of cultured animals
is similar to that of the wild stocks where the facility is located.
This is important to eliminate the potential for out-breeding
depression caused by escaped fish interbreeding with fish from the
local wild stock should escapement occur.
The extent to which there are population differences in genotypes
among potential farmed species in the Gulf varies by species.
Scientific information available for species likely to be cultured in
the Gulf EEZ (cobia, almaco jack, red drum, red snapper) indicates that
red snapper and red drum should be collected within a 62 and 82 mile
(100 and 132 km), respectively, radius of the location of the offshore
aquaculture facility, while cobia and almaco jack may be collected from
anywhere within the Gulf in order to maintain the genetic integrity of
those populations. Due to these large collection ranges, NMFS has
determined that this requirement does not pose an additional burden on
aquaculture operators.
NMFS does not agree that the FMP requirement that broodstock be
from the same population or subpopulation where the aquaculture
facility is located is an impediment to selective breeding as this
requirement does not directly address selective breeding practices.
NMFS is developing guidance which will address selective breeding
practices which will afford sufficient protections to wild stocks,
should escapement occur. NMFS is also developing tools (e.g., Offshore
Mariculture Escapes Genetics Assessment (OMEGA) model) which will allow
industry and regulators to objectively evaluate the potential genetic
risk(s) posed by cultured escapees.
Therefore, NMFS has not made any changes to this requirement.
Comment 4: NMFS requested public comment regarding whether it is
necessary for facilities to provide a Notice of Harvest to NMFS 72
hours prior to harvesting cultured animals to ensure that only cultured
animals are landed (this corresponds to issue 5 in the Public
Participation section of the proposed rule). NMFS received several
comments opposing the requirement to notify NMFS 72 hours prior to
harvesting. These comments indicated that this requirement would be
burdensome as harvesting may occur on a daily basis and weather
conditions and other factors may impact harvest schedules.
Response: NMFS has determined that it is appropriate to require the
Notice of Harvest. The 72-hour notification window is intended to aid
law enforcement and NMFS staff by allowing them the opportunity to be
present at a facility when harvesting occurs to verify that permittees
are harvesting only cultured species (e.g., through genetic testing)
and that they remain within their production cap. Permittees can
provide notification to NMFS either by phone or web-based form and may
use this same method to provide updates on harvest times, etc. should
inclement weather or other circumstances arise. This requirement was
contained in the FMP and the preamble to the proposed rule and NMFS is
adding it to the regulations in this final rule.
Comment 5: NMFS requested public comment on the additional costs,
if any, of maintaining a daily record of the number of fish introduced
into and number or pounds and average weight of fish removed from each
approved aquaculture system, including mortalities. In addition, NMFS
requested public comment on the extent to which this information aids
enforcement of production quotas and
[[Page 1768]]
auditing (this corresponds to issue 6 in the Public Participation
section of the proposed rule). NMFS received one comment requesting
that this requirement be maintained for enforcement purposes. NMFS did
not receive any comments opposing this requirement.
Response: NMFS has determined that this requirement is necessary to
provide the data needed to effectively enforce individual production
quotas and for auditing purposes. This type of recordkeeping is
standard practice in the aquaculture industry and therefore no
additional costs are anticipated. Therefore, NMFS has not made any
changes to this requirement.
Comment 6: NMFS requested public comment on the practical utility
and additional cost of the requirement to maintain original purchase
invoices for feed, or copies of such invoices, for 3 years from the
date of purchase in light of the recordkeeping requirement in EPA
regulations at 40 CFR 451.21(g)(1) (this corresponds to issue 7 in the
Public Participation section of the proposed rule). NMFS received one
comment related to this issue which urged NMFS to maintain strict
record-keeping requirements.
Response: NMFS has determined that it's appropriate to require that
permittees maintain original or copies of invoices for feed for 3 years
from the date of purchase. This requirement will assist NMFS and the
EPA in the event that water quality problems arise as a result of the
type of feed being used. Further, the EPA regulations (40 CFR
451.21(g)(1)) only require that NPDES permittees maintain records
documenting the feed amounts while NMFS' requirement will provide
information on the type of feed purchased as well as require permittees
keep this information for 3 years. NMFS does not anticipate this
requirement will result in additional costs to the applicant as the
applicant will receive this information as part of their normal
business activity. This requirement was contained in the preamble to
the proposed rule and NMFS is adding it to the regulations in this
final rule.
Comment 7: NMFS requested public comment on the draft SIR which was
prepared to evaluate whether there is a need for supplemental National
Environmental Policy Act (NEPA) analysis on the FMP, specific to the
passage of time (i.e., since 2009). In the proposed rule, NMFS stated
the draft SIR concludes that there are no substantial changes to the
proposed action or significant new circumstances or information that
require the preparation of an additional supplement to the FPEIS for
the FMP (this corresponds to issue 8 in the Public Participation
section of the proposed rule). NMFS received several comments
supporting the SIR's conclusion that that there are no substantial
changes to the proposed action or significant new circumstances or
information that require the preparation of additional supplemental
NEPA analyses. NMFS also received several comments which stated the SIR
was inadequate and that the 2009 FMP/FPEIS should be supplemented. Some
of these commenters also stated that the supplemental NEPA document
should also analyze the effects of the Deepwater Horizon MC252 oil
spill on the affected environment in the Gulf.
Response: On June 26, 2009, NMFS noticed in the Federal Register
the availability of the FPEIS for the FMP (74 FR 30569). The Deepwater
Horizon MC252 oil spill occurred on April 20, 2010, and was
successfully capped on July 15, 2010. On January 25, 2013, NMFS noticed
in the Federal Register its intent to supplement the FPEIS (SFPEIS) to
consider potential changes to the environment linked to the Deepwater
Horizon oil spill and determine if and how such changes may affect the
actions and alternatives analyzed in the FMP/FPEIS (78 FR 5403). NMFS
noticed the availability of the draft SFPEIS in the Federal Register on
February 28, 2014 (79 FR 11428), and published the notice of
availability of the final SFPEIS on July 2, 2015 (80 FR 38199).
The comments which stated the SIR was inadequate and the 2009 FMP/
FPEIS should be further supplemented did not identify any new
circumstances, information or impacts that are uncertain or that differ
from those described in the FMP/FPEIS and SFPEIS. NMFS determined that
no new or additional supplemental NEPA analysis is necessary, and
finalized the SIR on July 6, 2015. The FPEIS, SFPEIS and SIR can be
found on the Web site.
General Comments
Comment 8: There is no support in the Magnuson-Stevens Act for
NMFS's interpretation that Congress intended the term ``fishing,'' and
thus the term ``harvesting,'' to include the culture of fish.
Response: NMFS disagrees. As discussed in the preamble to the
proposed rule, it has been NOAA's long-standing interpretation that the
Magnuson-Stevens Act provides NMFS the authority to regulate
aquaculture as ``fishing'' and, thus, that regional fishery management
councils have the authority to prepare fishery management plans
covering all aspects of aquaculture in EEZ waters under their
respective jurisdictions. NMFS also, long ago, implemented the
Council's Coral FMP, which includes provisions for the aquaculture of
``live rock,'' and remains in effect currently.
This interpretation is based on the Magnuson-Stevens Act
definitions of the terms ``fishery'' (16 U.S.C. 1802(13)), ``stock of
fish'' (16 U.S.C. 1802(42)), and ``fishing'' (16 U.S.C. 1802(16)).
Because the Act does not define the term ``harvesting,'' NMFS looks to
the ordinary meaning of that word. ``Harvest'' is ``the act or process
of gathering in a crop.'' Merriam-Webster Dictionary (2011). ``Crop''
is defined as ``the produce of cultivated plants, esp. cereals,
vegetables, and fruit;'' ``the amount of such produce in any particular
season;'' or ``the yield of some other farm produce: the lamb crop.''
World English Dictionary (2011). Together, these definitions provide a
sound basis for concluding that ``fishing'' includes the catch, take,
or harvest of cultured stocks, and thus, that aquaculture activities
are within the scope of the term ``fishery'' as used in the Magnuson-
Stevens Act.
Further, because the definition of ``fishing'' includes not just
harvesting itself, but also activities expected to result in harvesting
fish, and operations at sea in support of such activities, NMFS has
determined there is a sound basis for concluding that ``fishing'' as
used in the Magnuson-Stevens Act encompasses, in addition to harvesting
the fish from aquaculture operations, other activities (e.g., stocking
and growing fish in offshore systems) at sea that are integral to
aquaculture operations.
Comment 9: Neither NMFS nor the Council have authority to develop a
permitting regime for aquaculture facilities, because such facilities
are neither ``fishing vessels'' under the Magnuson-Stevens Act, nor are
they ``vessels'' under 1 U.S.C. 3.
Response: NMFS disagrees the Council lacks the authority to permit
aquaculture facilities in the Gulf EEZ. Contrary to the statement in
the comment, the Gulf aquaculture permit is not limited to permitting
the facility. Under Sec. 622.101(a) and (c) of this final rule, a Gulf
aquaculture permit is necessary to deploy the gear, operate the
facility, sell or attempt to sell cultured species, possess or transfer
fish in or from the Gulf EEZ, operate any vessels, vehicle, or aircraft
in support of the aquaculture activity, and harvest and retain on board
a vessel live wild broodstock. Therefore, the permit applies to fishing
vessels, gear (the
[[Page 1769]]
aquaculture systems), and other fundamental aspects of the fishery.
The Magnuson-Stevens Act allows the Council to require a permit
with respect to any fishing vessel (section 303(b)(1)), to prohibit,
limit, condition, or require the use of specified types and quantities
of fishing gear (section 303(b)(4)), and to ``prescribe such other
measures, requirements, or conditions and restrictions as are
determined to be necessary and appropriate for the conservation and
management of the fishery'' (section 303(b)(14)). Together, these
provisions provide the Council the authority to require a permit to
engage in aquaculture in the Gulf EEZ.
Comment 10: NMFS should disapprove the rule because it was
submitted in 2013 and not simultaneously with the FMP in 2009.
Response: The Council submitted proposed regulations in 2009 at the
same time as the FMP. However, before NMFS published the proposed rule,
additional language was added to the regulations. The Council reviewed
these changes in February 2013 and deemed those changes as necessary
and appropriate for purposes of implementing the FMP. NMFS has
determined that this procedure was consistent with the requirements of
the Magnuson-Stevens Act.
Comment 11: The FMP, which entered into effect in September 2009 is
unlawful because it contains significant differences from the version
approved by the Council in January 2009, therefore, the Secretary
cannot lawfully implement the FMP.
Response: NMFS disagrees that the editorial changes made to the FMP
between the time it was approved by the Council and took effect were
significant or render the FMP unlawful. The Council, when approving the
FMP, was aware that staff would have usual editorial license to correct
errors and make non-substantive changes to language in the FMP to
improve the readability of the document. Thus, consistent with this
understanding, NMFS and Council staff made several editorial changes to
the FMP following Council approval in January 2009, but no substantive
changes were made prior to the Council's formal submission of the FMP
to the Secretary of Commerce for review.
Comment 12: The proposed rule is inconsistent with the Magnuson-
Stevens Act because it does not contain a link to the final FMP, which
includes changes deemed by the Council in February 2013. In addition,
the proposed rule failed to provide a list of the technical changes
that the Secretary made to the FMP.
Response: The proposed rule did contain a link to the final FMP in
the ADDRESSES section. No changes were made to the final FMP after it
was transmitted to the Secretary of Commerce for review and
implementation. Since the FMP was finalized, NMFS made several changes
to the proposed regulations. These changes clarified the existing FMP
requirements but did not change the substantive requirements of the
FMP. In February 2013, the Council reviewed and deemed these changes as
necessary and appropriate to carry out the actions in the FMP/FPEIS.
Comment 13: The Secretary acted outside of his authority under the
Magnuson-Stevens Act by allowing the FMP to enter into effect by
operation of law, because the FMP fails to demonstrate that it is
necessary for the conservation and management of Gulf fisheries.
Another commenter stated the Council acted outside its authority when
preparing the FMP for the same reason.
Response: NMFS disagrees. Section 304 of the Magnuson-Stevens Act
specifies that ``If the Secretary does not notify a Council within 30
days of the end of the comment period of the approval, disapproval, or
partial approval of a plan or amendment, then such plan or amendment
shall take effect as if approved.'' Because the Secretary did not take
action at the end of the comment period, the FMP entered into effect by
operation of law, rather than through Secretarial action. This was the
reasoning the Court applied when it ruled, in litigation brought after
the FMP took effect by operation of law, which included the arguments
contained in this comment, there was no final agency action. See the
response to Comment 8, above, with respect to the authority to manage
aquaculture as fishing under the Magnuson-Stevens Act.
Comment 14: The Council and NMFS have failed to evaluate whether
the FMP is consistent with NOAA's 2011 Marine Aquaculture Policy.
Response: NMFS disagrees. In June 2011, NMFS completed an internal
consistency analysis, which found that the FMP is consistent with
NOAA's 2011 Marine Aquaculture Policy. A copy of this analysis can be
found on the Web site.
Comment 15: The FMP and proposed rule violate the Public Trust
Doctrine by authorizing NMFS to confer exclusive property rights for
use in aquaculture.
Response: NMFS disagrees. The public trust doctrine is not
implicated by the FMP or the implementing regulations, which NMFS has
determined are consistent with the Magnuson-Stevens Act and other
applicable law. Further, the FMP and rule do not authorize NMFS to
confer exclusive property rights for use in aquaculture. A Gulf
aquaculture permit only authorizes the use of a particular site for the
duration of the permit and may be revoked, suspended, or modified
pursuant to enforcement proceedings under subpart D of 15 CFR part 904.
Comment 16: The final rule should outline specific parameters for
the baseline environmental survey (formerly referred to as the baseline
environmental assessment).
Response: NMFS is currently working with other Federal permitting
agencies to develop guidance for the baseline environmental survey.
This document will be made available on the Web site when the rule
becomes effective. Potential applicants are encouraged to contact NMFS
and other Federal regulatory agencies early in the permit application
process with any questions about the guidance document.
Comment 17: NOAA's 2011 Marine Aquaculture Policy mentions the
culture of non-native species may be possible if the best available
science demonstrates it would not cause undue harm and this option
should also be allowed in this rule. The rule should also allow culture
of species with lesser levels of environmental impact, such as native
shellfish, and encourage the use of multi-trophic aquaculture systems
which use plants.
Response: NMFS disagrees that the culture of non-native species
should be allowed. The Council considered an alternative that would
have allowed the culture of any species, including those that are non-
native to the Gulf (Action 4). However, the Council's Ad Hoc
Aquaculture Advisory Panel opposed the use of non-native species for
aquaculture. As explained in the FMP, if non-native species were
allowed to be cultured in the Gulf EEZ and some escaped, this could
have negative environmental impacts by introducing competition with
wild stocks, changing community structure and food web dynamics, and
modifying genetic structure if mating occurred with wild stocks. For
this reason, the Council determined, and NMFS agrees, that it is
appropriate to prohibit the culture of non-native species in the FMP.
With respect to the culture of shellfish and plants, plants are not
managed by the Council and are therefore not included in the list of
species allowed for culture under this rule. The Council does manage
shrimp but excluded shrimp from the allowable species, because the
Council did not expect
[[Page 1770]]
offshore aquaculture of shrimp to be cost effective. The only other
shellfish species that is managed by the Council and could be cultured
under the FMP is spiny lobster. Multi-trophic aquaculture systems that
use allowable species are encouraged.
Comment 18: NMFS failed to comply with the National Marine
Sanctuaries Act, which requires consultation when an agency action,
whether internal or external to a national marine sanctuary, is likely
to destroy, cause the loss of, or injure any sanctuary resources.
Because the FMP and rule do not prohibit offshore aquaculture in or
adjacent to designated marine sanctuaries and offshore aquaculture is
likely to result in significant harm to the Gulf Coast environment,
NMFS was required to consult with the Office of National Marine
Sanctuaries and failed to do so.
Response: NMFS disagrees that consultation under the National
Marine Sanctuaries Act is necessary. The Council considered prohibiting
offshore marine aquaculture in marine sanctuaries, but ultimately
rejected this alternative so that each marine sanctuary can evaluate
whether marine offshore aquaculture is compatible with their management
plan. This will allow individual consideration of proposed sites and an
evaluation by the experts in the Office of National Marine Sanctuaries
to determine whether the activity can be permitted under the applicable
provisions of the National Marine Sanctuaries Act and the sanctuary
regulations. During the permit review and approval process, the RA will
also evaluate any proposed site that is adjacent to a marine sanctuary,
as required under Sec. 622.103(a)(4), and will consult with the Office
of National Marine Sanctuaries if appropriate.
Comment 19: NMFS missed statutory deadlines when publishing the
notice of availability for the FMP. Therefore, the Council and NMFS
must reinitiate the rulemaking process and properly follow the
statutory timelines.
Response: The transmittal date for the FMP was May 29, 2009, and
the notice of availability published on June 4, 2009. This publication
schedule is consistent with the timelines set out in Sec. 304(a) of
the Magnuson-Stevens Act.
Comment 20: Offshore aquaculture regulations promulgated in the
Gulf should apply to all U.S. EEZ waters.
Response: Neither the Council nor NMFS has the authority under the
Magnuson-Stevens Act to require that the regulations in this final rule
apply to all U.S. EEZ waters. The Magnuson-Stevens Act established 8
regional fishery management Councils that have specified jurisdictions.
The FMP was developed by the Council and implemented by NMFS to
regulate offshore aquaculture in the Gulf EEZ. Other Councils may
decide to develop their own regulations for offshore aquaculture in EEZ
waters under their jurisdiction.
Comment 21: The definitions of ``aquaculture'' and ``aquaculture
facility'' in the rule refer to ``propagation and rearing'' which would
require both activities to be conducted to qualify as an aquaculture
activity. This should be changed to make it clear that an activity is
``aquaculture'' under this rule if it involves either propagation or
rearing.
Response: NMFS agrees that using the phrase ``propagation and
rearing'' could be interpreted to require both activities. Therefore,
NMFS has changed the phrase ``propagation and rearing'' in the
definition of ``aquaculture'' to the phrase ``propagation or rearing''.
In addition, NMFS has changed the phrase ``hold, propagate, and rear''
in the definition of ``aquaculture facility'' to the phrase ``hold,
propagate, or rear'' for the same reasons.
Comment 22: The proposed rule is inconsistent with the FMP as it
omits ``same population or subpopulation'' in Sec.
622.101(a)(2)(xiii).
Response: NMFS resolved the inconsistency by adding that language
to Sec. 622.101(a)(2)(xiii) of this final rule. The language was
contained in the FMP and discussed in the preamble of the proposed
rule, however, it was not included in the proposed codified text. Based
on public comment, NMFS determined this should be added to the
regulations in this final rule.
Comment 23: Stocking densities in offshore aquaculture systems
should be limited to levels that do not harm marine ecosystems.
Response: NMFS does not specify stocking limits for offshore
aquaculture systems. However, NMFS will consider site size, location,
baseline environmental survey data as well as the amount of animals
cultured at each site when reviewing permit applications. NMFS may deny
a permit or a particular site if it would pose significant risks to
marine resources.
Comment 24: The FMP should specify a strategy for regulating the
occupational safety and health of those employed by offshore
aquaculture operations, and provide a mechanism to monitor workplace
conditions and health outcomes.
Response: The U.S. Department of Labor's Occupational Safety and
Health Administration is the main Federal agency charged with setting
and enforcing standards under the Occupational Safety and Health Act of
1970. Thus, issues related to the occupational safety and health of
those employed by offshore aquaculture operations are outside NMFS'
jurisdiction and the scope of this rulemaking, and not addressed here.
National Standards
Comment 25: The FMP fails to meet the requirements of National
Standard 1 of the Magnuson-Stevens Act because the definition of MSY
for cultured species in the FMP is impermissible and because neither
the FMP nor regulations demonstrate how the aquaculture permitting
program will reduce fishing mortality and increase OY. To the contrary,
the FMP might increase mortality from spread of disease and increase
the catch of prey species to feed captive fish.
Response: NMFS disagrees. National Standard 1 requires conservation
and management measures to prevent overfishing while achieving, on a
continuing basis, the OY from the fishery (16 U.S.C. 1851(a)(1)). NMFS'
implementing guidelines at 50 CFR 600.310 set out standard approaches
for specifying MSY, OY and other parameters to be used in assessing the
performance of fisheries relative to this mandate, but also recognize
there may be circumstances, including harvests from aquaculture
operations, which do not fit the standard approaches. In those
circumstances, the guidelines provide the councils flexibility to
propose alternative approaches for satisfying the National Standard 1
requirements.
Sections 4 and 6 of the FMP explain and analyze the alternative
approaches the Council considered to meet the National Standard 1
mandate. Since aquaculture is essentially a farming operation, all
animals cultured are intended for harvest and there is no need to leave
cultured animals in aquaculture systems to support future generations
and guard against long-term depletion. However, it is conceivable that
some level of aquaculture in the Gulf could adversely impact wild
stocks or the marine environment. Therefore, the Council determined,
and NMFS agrees, the most logical approach is to define management
reference points and status determination criteria for the aquaculture
fishery in a way that is intended to constrain production below that
critical threshold level until we obtain more information about the
environmental impacts of aquaculture and the production capacity of the
Gulf.
The resulting MSY and OY specified in the FMP will increase the
seafood production potential of wild stocks, their contributions to
national, regional,
[[Page 1771]]
and local economies, and their capacity to meet the Nation's
nutritional needs. The FMP's reliance on existing overfished and
overfishing criteria established in FMPs for wild stocks will help to
ensure offshore aquaculture, including broodstock harvest operations,
in the Gulf EEZ does not adversely affect wild stocks by spreading
disease or other factors, causing them to undergo overfishing or become
overfished.
Comment 26: The FMP violates the allocation requirements of
National Standard 4 of the Magnuson-Stevens Act.
Response: NMFS disagrees. National Standard 4 states that, if it
becomes necessary to allocate or assign fishing privileges among
various U.S. fishermen, such allocation shall be (1) fair and equitable
to all such fishermen; (2) reasonably calculated to promote
conservation; and (3) carried out in such manner that no particular
individual, corporation, or other entity acquires an excessive share of
such privileges (16 U.S.C. 1851(a)(4)).
NMFS' implementing guidelines at 50 CFR 600.325(c) define an
``allocation'' or ``assignment'' of fishing privileges as a direct and
deliberate distribution of the opportunity to participate in a fishery
among identifiable, discrete user groups or individuals. The guidelines
also state that, to be fair and equitable, any allocation should be
rationally connected to the achievement of OY; to promote conservation,
allocations may encourage a rational, more easily managed use of the
resource; and, to avoid excessive shares, allocations must be designed
to deter any person or other entity from acquiring an excessive share
of fishing privileges.
The FMP provides that all U.S. citizens and permanent resident
aliens are eligible to apply for a Gulf aquaculture permit. The only
factors limiting participation are permitting requirements, which apply
equally to all applicants, and a maximum annual production cap. The
maximum annual production cap is intended to promote conservation by
helping to responsibly manage the development of the offshore
aquaculture industry while we obtain more information about the number
and size of aquaculture operations, the production capacity of various
aquaculture systems, and the environmental impacts and economic
sustainability of aquaculture. Also, the FMP limits persons,
corporations, and other entities from producing, annually, more than 20
percent of the production cap to prevent any one entity from obtaining
an excessive share of fishing privileges, and inordinate control by
buyers and sellers that would not otherwise exist.
Comment 27: The FMP fails to meet the requirements of National
Standard 5 of the Magnuson-Stevens Act because neither the FMP nor the
implementing regulations address a serious management or conservation
purpose. Rather, the real purpose of the FMP and implementing
regulations is economic allocation (i.e., the transfer of fishing
rights to aquaculturists).
Response: NMFS disagrees with this interpretation of National
Standard 5, which requires conservation and management measures to
promote efficiency in the use of fishery resources, where practicable,
except that no such measure will have economic allocation as its sole
purpose (16 U.S.C. 1851(a)(5)).
Even so, the conservation and management need for the FMP is
articulated in the primary goal, which is to increase the MSY and OY of
Federal fisheries in the Gulf by supplementing the harvest of wild
caught species with cultured product. As explained in the FMP,
supplementing the harvest of domestic fisheries with cultured product
will help the U.S. to meet consumers' growing demand for seafood and
may reduce the Nation's dependence on seafood imports. The MSY and OY
of each Council-managed fishery are currently limited by each fishery's
biological potential. However, establishing an aquaculture fishery
would increase total yield above and beyond that which can be produced
solely from wild stocks. Increasing the seafood production potential of
these fisheries will increase their contributions to national,
regional, and local economies, and their capacity to meet the Nation's
nutritional needs.
Further, the FMP does not authorize NMFS to confer exclusive
property rights for use in aquaculture. A Gulf aquaculture permit only
authorizes the use of a particular site for the duration of a permit
and may be revoked, suspended, or modified pursuant to enforcement
proceedings under subpart D of 15 CFR part 904.
Comment 28: The FMP violates National Standard 8 of the Magnuson-
Stevens Act because it fails to take into account the importance of
fishery resources to fishing communities, and does not, to the extent
practicable, minimize adverse economic impacts on such communities. The
plan does not demonstrate that offshore aquaculture will prevent
overfishing or rebuild fisheries and is almost certain to adversely
impact fishing communities.
Response: NMFS disagrees. National Standard 8 provides that
conservation and management measures shall, consistent with the
conservation requirements of the Magnuson-Stevens Act (including the
prevention of overfishing and rebuilding of overfished stocks), take
into account the importance of fishery resources to fishing communities
to (A) provide for the sustained participation of such communities, and
(B) to the extent practicable, minimize adverse economic impacts on
such communities (16 U.S.C. 1851(a)(8)).
The Gulf fishing communities potentially affected by this action
are extensively described in the Gulf Council's 2004 and 2005 EFH
Environmental Impact Statements (EISs), and the permitting,
operational, monitoring, and reporting requirements of the FMP are
designed to achieve the conservation objectives of the FMP and the
Magnuson-Stevens Act (including preventing overfishing and rebuilding
overfished wild stocks), while minimizing adverse economic impacts on
those communities to the extent practicable.
The potential impacts of the FMP on fishing communities are
discussed in Sections 4, 5.4, 6, 7, and 8 of the FMP. Depending on the
extent to which aquaculture products compete with landings from
domestic fisheries, fishing communities could experience adverse
effects, such as loss of jobs and revenue due to decreased prices.
However, if the aquaculture products are primarily bound for export
with little to no impact on domestic supply of traditionally landed
species, fishing communities, especially dealers and processors, could
benefit from increased jobs and revenues. Moreover, if domestic
aquaculture products compete with imports of aquaculture product, there
could be a decrease in imported seafood and simultaneously an increase
in economic benefits that derive from an increase in net exports.
However, the likelihood of net beneficial or adverse impacts occurring
would depend on the relative prices, quality and quantity of
aquaculture product, and many other factors influencing domestic and
international market demand of both farmed and wild-caught species.
Since aquaculture is essentially a farming operation, all animals
cultured are intended for harvest and cannot undergo overfishing or
become overfished. Offshore aquaculture may help reduce fishing
mortality on wild stocks by providing an alternate source of food and
relieving some fishing pressure on wild stocks.
Comment 29: The FMP fails to meet the requirements of National
Standard 9 of the Magnuson-Stevens Act because it
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fails to adequately discuss bycatch and because it attempts to limit
bycatch through NMFS evaluation of the aquaculture system and reporting
requirements rather than requiring NMFS to reject aquaculture systems
with the highest potential for bycatch and authorizing the agency to
revoke or modify permits of those facilities that have high levels of
bycatch.
Response: NMFS disagrees. National Standard 9 requires conservation
and management measures that, to the extent practicable, (A) minimize
bycatch and (B) to the extent bycatch cannot be avoided, minimize the
mortality of such bycatch (16 U.S.C. 1851(a)(9)). The FMP and this
final rule contain a number of measures aimed at minimizing the bycatch
of aquaculture operations to the extent practicable.
The RA is required to review proposed aquaculture systems on a
case-specific basis and may deny the use of a system if it poses
significant risk to endangered or threatened species, marine mammals,
other marine resources, and is otherwise inconsistent with National
Standard 9 or other applicable Federal law.
This final rule will allow NMFS to minimize any potential adverse
impacts of broodstock collection by requiring permittees to obtain the
RA's approval prior to each collection event. Collection requests must
include information on the number, size, and species to be harvested,
the methods, gear, and vessels to be used for capturing, holding, and
transporting broodstock, the date and specific location of the intended
harvest, and the location where the broodstock will be delivered. The
RA may deny a request to harvest broodstock if allowable methods or
gear are not proposed for use, the number of broodstock is larger than
necessary for spawning and rearing activities, or if the proposed
activity is otherwise inconsistent with National Standard 9 or other
Federal law.
Also, permittees are required to inspect aquaculture systems for
entanglements and interactions with marine mammals, protected species,
and migratory birds at a frequency specified as a condition of their
permit, and to report any entanglements or other interactions to NMFS.
NEPA Analyses
Comment 30: The SFPEIS violates NEPA because it was not presented
to the Council, did not inform the Council's decision to approve the
FMP, lacked meaningful public input, fails to include and assess
substantive changes NMFS made to the FMP, and was not finalized in a
timely manner.
Response: NMFS disagrees. The SFPEIS was prepared to analyze the
effects of the Deepwater Horizon MC252 oil spill, which occurred after
the Council approved the FMP. NMFS provided the Council the opportunity
to review and comment on the draft SFPEIS during the 45-day public
comment period, which was noticed in the Federal Register on February
28, 2014 (79 FR 11428). NMFS received 15 distinct comments on the draft
SFPEIS and addressed those comments in the final SFPEIS, which is
available on the Web site. The Council has the authority and discretion
to revisit and modify the FMP at any time should the Council determine
there is a conservation and management need that has not been
addressed.
NMFS did not make any substantive changes to the FMP that would
require additional analysis in the SFPEIS. When approving the FMP, the
Council was aware that staff would have usual editorial license to
correct errors and improve the readability of the document. Thus,
consistent with this understanding, NMFS and Council staff made several
editorial changes to the FMP following Council approval in January
2009, but no substantive changes were made prior to the Council's
formal submission of the FMP to the Secretary of Commerce for review.
In regard to the timeliness of the SFPEIS, NMFS finalized the
document within approximately two years of the notice of intent to
prepare an SFPEIS. This schedule is not atypical for such documents.
Section 1502.9 of the CEQ regulations implementing NEPA specifies under
what conditions agencies must supplement an EIS, but does not dictate
specific timeframes in regard to preparation of such documents.
Comment 31: One commenter stated the FMP/FPEIS is inconsistent with
NEPA because the ``Purpose and Need'' section of the document is too
narrowly defined, rendering the agency's alternatives analysis
meaningless. Another commenter also stated the FMP/FPEIS does not
contain an adequate impact analysis and fails to evaluate a reasonable
number of alternatives.
Response: NMFS disagrees that the purpose and need of the FMP/FPEIS
is too narrowly defined to support a reasonable range of alternatives
and that the impact analysis is inadequate.
The stated purpose of the FMP is to maximize benefits to the Nation
by establishing a regional permitting process to manage the development
of an environmentally sound and economically sustainable aquaculture
fishery in the Gulf EEZ. This purpose is not so narrow as to define
competing reasonable alternatives out of consideration. The Council
initiated this action to provide a programmatic approach to evaluating
the impacts of aquaculture proposals in the Gulf.
The FPEIS analyzes a wide range of alternatives considered by the
Council and NMFS related to all aspects of the aquaculture permitting
program, including No Action alternatives for each action analyzed in
the FPEIS. The proposed action to establish a permit program for
aquaculture facilities in the Gulf EEZ considered a No Action
alternative that would maintain the status quo (an exempted fishing
permit would be required to conduct aquaculture in the Gulf EEZ), as
well as reasonable range of alternatives to maintaining the status quo,
including one that defines the permit program in this final rule and
one that would have required separate permits for siting and
operations. Also, the FMP/FPEIS explores a number of other alternatives
related to permit duration; operational requirements and restrictions;
species to be cultured and systems to be used; siting requirements and
restrictions; restricted access zones; reporting and recordkeeping
requirements; management reference points; and framework procedures.
Section 6.0 of the FMP/FPEIS contains a detailed comparative
analysis of the direct and indirect effects of the proposed action and
all alternatives on the affected physical, biological, ecological,
economic, social, and administrative environments described in Section
5.0 of the document. Additional alternatives the Council considered
during the scoping and public review process, but did not retain for
full analysis, are described in Appendix D, along with the rationale
for eliminating them from detailed study.
Comment 32: The proposed rule should have referenced the NEPA
analysis for this action.
Response: The proposed rule indicated that NMFS prepared a FPEIS in
association with the FMP to satisfy NEPA. Also, the proposed rule
stated that NMFS was preparing a SFPEIS to consider new information
related to the Deepwater Horizon MC252 oil spill. The proposed rule
specifically requested comments on a draft SIR NMFS prepared to
evaluate whether there is a need for additional supplemental NEPA
analysis on the FPEIS specific to the passage of time in accordance
with 40 CFR 1502.9(c).
Comment 33: The FMP is deficient because it fails to consider
socio-
[[Page 1773]]
economic impacts; environmental impacts related to benthic and water
quality impacts, ocean ecosystem impacts, escapes, diseases and
parasites, overfishing of forage fish species, and human health; new
information relevant to the effects analysis; reasonable mitigation
measures; and recent studies which address the ecological, economic,
and cultural problems associated with aquaculture.
Response: NMFS disagrees. Section 6.0 of the FMP/FPEIS analyzes the
direct, indirect, and cumulative effects of marine aquaculture on the
environment, including the potential economic and social effects of the
fishery on domestic fisheries and fishing communities; potential user
conflicts; the effects of aquaculture systems and effluent on
surrounding habitats and ecosystems; potential interactions with
wildlife; the effects of culturing species, including harvesting prey
species for feed, and escapes on local wild stocks; the effects of
diseases and parasites on aquatic animal health; and the effects of
cultured species on human health, with respect to the use of
antibiotics and consumption of cultured fish and the health benefits of
consuming seafood. Section 6.1.4 summarizes the mitigation measures
incorporated into each proposed action, and concludes those measures
sufficiently mitigate the impacts of offshore marine aquaculture.
In regard to the lack of recent information in the FMP, the FMP was
finalized in 2009, however, the SFPEIS and SIR evaluated recent studies
and new information relevant to the effects analysis and determined no
changes to the proposed actions are warranted. Those documents are
available on the Web site.
Comment 34: The proposed rule places the responsibility for
conducting an environmental assessment on each permit applicant.
Response: The proposed rule stated that applicants for Gulf
aquaculture permits are required to submit environmental assessments to
NMFS, along with their applications. The term ``environmental
assessment'' used in that context refers to baseline environmental
assessments, which will contain survey and data requirements that NMFS
will use to review and approve proposed aquaculture sites during the
permit application process.
Because the term ``environmental assessment'' is also a common NEPA
term, NMFS changed the term ``baseline environmental assessment'' to
``baseline environmental survey'' in this final rule to avoid
confusion. The baseline environmental survey requirement is separate
from any additional NEPA analysis which NMFS may undertake for
individual aquaculture applications during the permit review process.
Comment 35: The application of NEPA to the aquaculture permit
approval process established in the FMP and this final rule is
questionable. Specifically, it is unclear whether the process
constitutes a major Federal action subject to NEPA and whether the
``tiering'' process established by the FPEIS precludes the use of EISs
in evaluating individual Gulf aquaculture permit applications. In
addition, a separate NEPA review should be conducted related to the
harvest of fish from offshore systems, which requires a separate
approval from NMFS and is therefore a separate agency action.
Response: The implementation of the Gulf aquaculture FMP is a major
Federal action subject to NEPA. The FPEIS and SFPEIS serve as the basis
for evaluating the effects of issuing permits to Gulf aquaculture
operations. NMFS intends to evaluate each aquaculture application
during the review and approval process to determine whether it is
adequately supported by the FPEIS and SFPEIS and, therefore, NEPA
compliant. If an application proposes an action, including activities
related to the harvest of fish from offshore systems, which
substantially differs from the FMP in a way that is relevant to
environmental concerns, or presents significant new circumstances or
information relevant to environmental concerns, then NMFS will further
supplement the FPEIS, consistent with Council on Environmental Quality
regulations at 40 CFR 1502.9(c). If NMFS determines that additional
supplemental NEPA analysis is needed, then that analysis will likely
``tier'' off the analyses in the FPEIS and SFPEIS, and would be
prepared, circulated and filed in the same fashion (exclusive of
scoping) as the draft and final PEIS and SPEIS.
Comment 36: The Council violated the Magnuson-Stevens Act and NEPA
when they deemed the changes NMFS made to the proposed regulations in
2013 because they did not revisit and amend the FMP before they deemed
the regulations and because the SFPEIS had not yet been finalized
before they deemed the regulations.
Response: NMFS disagrees that the Magnuson-Stevens Act requires the
Council to revisit and amend the FMP before deeming changes to the
implementing regulations. Before publishing the proposed regulations
the Council submitted along with the FMP in 2009, NMFS added some
additional language to clarify the FMP requirements. That language did
not change any FMP requirements. Because the regulations and FMP are
consistent, the Council did not need to consider amending the FMP to
resolve any inconsistencies when they deemed the additional language as
necessary and appropriate for implementing the FMP.
Also, NMFS disagrees that NEPA requires the SFPEIS to have been
finalized before the Council deemed changes to the regulations
implementing the FMP. Council on Environmental Quality regulations at
Sec. 1502.9(c) require federal agencies to supplement EISs if they
make substantial changes to the proposed action that are relevant to
environmental concerns or if there are significant new circumstances or
information relevant to environmental concerns and bearing on the
proposed action or its impacts. As stated in the notice of intent
published in the Federal Register on January 25, 2013, NMFS prepared
the SFPEIS to evaluate how the Deepwater Horizon MC252 oil spill may
have changed the affected environment since the FMP took effect and
whether there is a resulting need to revisit the FMP (78 FR 5403).
Because the regulations deemed by the Council simply implement the
existing FMP, the analysis in the SFPEIS was not relevant to the
Council action to deem those regulations.
The SFPEIS, which published in the Federal Register on July 2,
2015, concludes, based on the information known at this time, there is
no reason to believe the conclusions reached in the FMP/FPEIS have been
altered or changed due to the oil spill and, therefore, there is no
need to evaluate other actions or alternatives that differ from those
considered in the original FPEIS (80 FR 38199). Through the Natural
Resource Damage Assessment process, NOAA and the other trustees
continue to work toward a better understanding of the effects of the
Deepwater Horizon MC252 oil spill on the environment and resources of
the northern Gulf. The Council may revisit the FMP at any time should
they determine there is a conservation and management need that has not
been addressed.
Comment 37: NMFS failed to satisfy the procedural requirement of
NEPA by not publishing a record of decision (ROD) within 30 days of
finalizing the FPEIS.
Response: NEPA does not require that an agency publish a ROD within
30 days of finalizing an EIS. Per 40 CFR 1505.2, an agency is required
to publish the ROD at the time of its decision. The only timing
limitations with respect to publishing the ROD are set out in 40 CFR
1506.10(b), which states that this
[[Page 1774]]
cannot occur until the later of 90 days after publication of a notice
of a draft EIS or 30 days after publication of a notice of a final EIS.
Gulf Aquaculture Permitting Process and Requirements
Comment 38: The final rule should explain the regulatory framework
for other Federal agencies for permitting offshore aquaculture
operations.
Response: NMFS disagrees that it is necessary to explain in this
final rule the regulatory framework of other Federal agencies for
permitting offshore aquaculture operations. Section 10.0 of the FMP
outlines other applicable Federal laws in relation to offshore
aquaculture facilities. In addition, the National Science and
Technology Council's Committee on Science's Interagency Working Group
on Aquaculture (formerly known as the Joint Subcommittee on
Aquaculture) established a Regulatory Task Force to better streamline
and coordinate the Federal aquaculture permitting processes, and that
Working Group is developing a guidance document that outlines the
various permitting responsibilities and authorities of Federal agencies
for offshore aquaculture operations in the Gulf EEZ. This document will
be made available on the Web site when the rule becomes effective.
Comment 39: The criteria for Gulf aquaculture permit renewals
should be explicitly stated.
Response: Section 622.101(d)(6) of the final rule states the
requirements and timing criteria for permit renewals. Applicants must
submit a completed renewal application form and all required supporting
documentation to the RA at least 120 days and 30 days prior to the date
they desire the aquaculture permit or aquaculture dealer permit renewal
to take effect, respectively. The application forms will indicate the
specific information and documentation required, which will be a sub-
set of the information and documentation required for initial issuance
of the permit as specified in Sec. 622.101(a)(2) of this final rule.
NMFS considers compliance with recordkeeping and reporting requirements
(including annual reports) as specified in the regulations as
information necessary for administration of the permit, and may decline
to process a renewal request until all the applicable requirements are
met. Further, as stated in Sec. 622.101(d)(8), a permit application
may be denied in accordance with the procedures governing enforcement-
related permit sanctions and denials found at subpart D of 15 CFR part
904.
Comment 40: The requirement that permittees deploy at least 25
percent of aquaculture systems within 2 years of permit issuance and
stock juveniles into these systems within 3 years of permit issuance
does not take into account the long lead times required to establish an
aquaculture operation. NMFS should allow at least 5 years for these
activities or require permittees to submit a site development plan and
ensure that certain milestones are met.
Response: The Council determined, and NMFS agrees, the 2- and 3-
year time requirements for deploying systems and stocking juveniles,
respectively, were considered reasonable for an aquaculture facility to
begin operation.
Permittees may request a 1-year extension of these deadlines in the
event of a catastrophe (e.g., hurricane). The RA will approve or deny
the extension request after determining if catastrophic conditions
exist and whether or not the permittee was affected by the catastrophic
conditions. The RA will provide the determination and the basis for it,
in writing to the permittee.
Comment 41: NMFS should implement a streamlined permitting process
with other Federal agencies to reduce any conflicting or duplicative
requirements. Additionally, a Memorandum of Understanding (MOU) should
be developed between the appropriate Federal agencies, and agencies
should be provided adequate time and resources to build enforcement
capacity.
Response: NOAA chairs the Interagency Working Group on
Aquaculture's Regulatory Task Force, which is charged with coordinating
Federal aquaculture permitting processes to reduce duplication and
streamline permitting processes. As part of that effort, NMFS and other
Federal agencies are developing an interagency MOU to facilitate the
needed coordination.
Comment 42: There should be at least a 60-day public comment period
on each Gulf aquaculture permit application. Another comment stated
that any public comment period requirement is burdensome and
unnecessary.
Response: The Council determined, and NMFS agrees, that, as a
general rule, a 45-day comment period is sufficient for purposes of
commenting on individual aquaculture applications because this provides
the public ample time to review and comment on applications without
unduly delaying the review process.
NMFS disagrees that the comment period is burdensome and
unnecessary. The public comment period on individual aquaculture
applications is a critical component of the approval process. Public
comments received on individual applications may allow NMFS to identify
potential user conflicts and other issues that may be relevant to NMFS'
decision regarding whether to approve a permit. Facilitating public
participation in the decision to issue a Gulf aquaculture permit is an
important part of the process that will improve NMFS' decision making
without unduly burdening the permit applicant.
Comment 43: The final rule should direct NMFS to consider all
relevant ecological factors during the permit review process.
Response: NMFS agrees that it is important to consider relevant
ecological factors during the permit review process and has determined
that the final rule requires this consideration. As specified in
Sec. Sec. 622.103(a)(4) and 622.105(a), the RA will evaluate each
proposed site, and each proposed system and its operations, during the
permit review process. NMFS may deny use of a site or a system if it is
determined to pose a significant risk to wild fish stocks, EFH,
endangered or threatened species, or marine mammals, will result in
user conflicts with commercial or recreational fishermen, other marine
resource users, or the OCS energy program, if the depth of the site is
not sufficient for the allowable aquaculture system, substrate and
currents at the site will inhibit the dispersal of wastes and
effluents, the site is prone to low dissolved oxygen or harmful algal
blooms, or if the proposed site or system is otherwise inconsistent
with FMP objectives or other applicable law.
Comment 44: The final rule should establish grounds for revoking,
suspending, or modifying permits and explain when NMFS will take
remedial actions.
Response: Section 622.101(d)(8) of this final rule specifies that a
permit may be revoked, suspended, or modified in accordance with the
procedures governing enforcement-related permit sanctions and denials
found at subpart D of 15 CFR part 904. Section 904.301(a) specifies the
bases for permit sanction or denials, including the commission of any
violation prohibited by any statute administered by NOAA, including
violation of any regulation promulgated or permit condition or
restriction prescribed thereunder, by the permit holder or with the use
of a permitted vessel. Thus, reasons for revoking
[[Page 1775]]
permits include, but are not limited to, failure to comply with the
monitoring, recordkeeping or reporting requirements of NMFS and other
Federal agencies, failure to maintain valid ACOE Section 10 and EPA
NPDES permits and failure to abide by permit terms and conditions.
Section 622.108 addresses remedial actions by NMFS and provides
that in addition to permit sanction and denials, NMFS may order
movement restrictions or the removal of all cultured animals if
pathogens are identified or it is determined the genetically engineered
or transgenic animals were used.
Comment 45: The 180-day time period for review of a Gulf
aquaculture permit is excessive and should be changed to 90 days, after
which time the permit should be issued if NMFS has not made a decision.
Response: NMFS disagrees that a 180-day time period for permit
review is excessive and that a 90-day permit review timeframe would be
adequate. The Council determined, and NMFS agrees, that 180 days is a
reasonable amount of time to review and process individual permit
applications, conduct public comment periods, and complete necessary
consultations without unduly delaying or prolonging the approval
process.
Comment 46: Several commenters stated that 10-year permit terms and
5-year renewals are not long enough to attract significant commercial
investment and that permits should be issued for longer periods of
time. In contrast, several other commenters stated that permit terms
should be issued for shorter periods of time to ensure permits are
thoroughly reviewed on a more frequent basis.
Response: The Council determined, and NMFS agrees, the initial
permit term of 10 years with 5-year renewals strikes the best balance
between providing adequate time to establish operations and funding,
while not granting excessively long permit durations which would make
it difficult for NMFS to review and address any unexpected problems
related to user conflicts or other issues. However, in response to
industry concerns, NMFS has also determined that it is appropriate to
make an administrative change to the permitting process to allow permit
holders to request additional time to secure financing and prepare for
production without changing the 10-year effective period of the initial
issuance. Therefore, NMFS is modifying the requirements in Sec.
622.101(d)(3)(iii) to allow the applicant to defer initial issuance of
a Gulf aquaculture permit for up to 2 years from the date the RA
notifies the applicant of the decision to grant the permit. The Council
may choose to change the permit duration terms in the future after more
information is known about the impacts and feasibility of aquaculture
operations in the Gulf EEZ. Additionally, as discussed above, in the
event of a significant unexpected problem requiring urgent action to
protect public health, interest, or safety, NMFS may consider
withdrawing, suspending, revoking, or annulling a permit pursuant to
the Administrative Procedure Act, 5 U.S.C. 558(c).
Comment 47: The $10,000 permit application fee is prohibitive and
unnecessary given the nascent status of the offshore aquaculture
industry.
Response: NMFS disagrees. The fee schedule for permit applications
is based on criteria set forth in the NOAA Finance Handbook and
reflects the administrative costs associated with review of Gulf
aquaculture permit applications and permit issuance. These costs
include meeting with potential applicants to provide guidance and
identifying critical issues before applications are finalized,
reviewing application packages (e.g., site surveys, systems, business
information) to determine the impacts of proposed operations on NOAA
trust resources and associated requirements consulting with the Council
and the public on proposed operations, and legal and technical support
informing determinations regarding permit issuance. Details on the NOAA
Finance Handbook can be found at: http://www.corporateservices.noaa.gov/finance/Finance%20Handbook.html.
Comment 48: NMFS should explain the contingencies for transferring
a Gulf aquaculture permit.
Response: Permit transfer provisions are outlined in Sec.
622.101(d)(5) of this final rule. Gulf aquaculture permits are
transferable as long as the geographic location of the aquaculture
facility site remains unchanged and all applicable permit requirements
were completed and updated at the time of transfer. The transferee must
also be a U.S. citizen or permanent resident alien in order to be
eligible for a permit.
Comment 49: The proposed rule estimates the average time to prepare
a Gulf aquaculture permit application and supporting documents to be 33
hours. This is an underestimation. The final rule should also correct
the assumption that the baseline environmental survey will require 24
hours to complete as this will likely take several weeks or more.
Response: NMFS agrees and has recalculated the estimated time it
will take to prepare a permit application and supporting documents
(assurance bond, contract with a certified aquatic animal health
expert, emergency disaster plan) to be approximately 51 hours. This
estimate does not include the time necessary to complete a baseline
environmental survey, which could take up to 320 hours based on the
calculation of work necessary to conduct the survey on a site that
would produce approximately 12.8 million lb (5.8 million kg) annually.
NMFS notes that the actual time to complete an application and baseline
environmental survey may vary as it will depend on the complexity of
the operation, as well as the location and size of the proposed site.
Siting Criteria and Requirements
Comment 50: NMFS should consider information on ocean depth, ocean
speeds, substrate types, hypoxia, and fish habitats prior to approving
a permit.
Response: NMFS agrees. As specified in Sec. 622.103(a)(4) and as
discussed in Section 4.6 of the FMP, the RA will evaluate proposed
sites on a case-by-case basis. Siting criteria for offshore aquaculture
systems include but are not limited to: The depth of the site, current
speeds and benthic sediments, the frequency of harmful algal blooms or
hypoxia at the proposed site, marine mammal migratory pathways, and the
location of the proposed site relative to important habitats. NMFS will
consider this information as well as information from the baseline
environmental survey requirement when determining whether to approve or
deny a permit.
The RA may deny use of a proposed aquaculture site based on a
determination the proposed site: Would pose significant risks to EFH,
or to endangered or threatened species; would result in user conflicts
with commercial or recreational fishermen or with other marine resource
users; would pose risk to the cultured species due to low dissolved
oxygen or harmful algal blooms; is not of sufficient depth for the
approved aquaculture system; is characterized by substrate and currents
that would inhibit the dispersal of wastes and effluents; or is
otherwise inconsistent with FMP objectives and applicable Federal laws.
Comment 51: The 1.6 nm (3 km) minimum distance between aquaculture
operations is too conservative and should be based on scientific
criteria and designated on a case-by-case basis according to the
specifics of each facility.
Response: The Council determined, and NMFS agrees, that, as a
general rule, 1.6 nm (3 km) provides a sufficient buffer between Gulf
aquaculture facilities. As discussed in the proposed
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rule, as well as in section 4.6 of the FMP, this siting requirement was
established to minimize transmission of pathogens between facilities.
British Columbia and Chile require salmon farms to be sited at least
1.6 nm (3km) apart, while Scotland requires salmon farms to be sited at
least 4.3 nm (8km) apart. By comparison, Nova Scotia, Newfoundland,
Maine, and New Brunswick require salmon farms to be separated by a
distance of 0.5 nm (1 km) or less. Thus, although there is no widely
accepted standard for how far apart facilities should be sited, the
farther apart facilities are sited, the lower the likelihood that water
from one facility will contaminate water at another facility. The
Council determined and NMFS agrees that the minimum distance of 1.6 nm
(3 km) strikes an appropriate balance. However, this final rule also
states that each proposed site will be evaluated on a case-by-case
basis and allows the RA to deny the use of a proposed site based on the
criteria in Sec. 622.103(a)(4) even if it meets or exceeds the minimum
distance requirement of 1.6 nm (3 km).
Comment 52: NMFS should prohibit siting of aquaculture facilities
in sensitive habitats. Offshore aquaculture facilities will compete for
space with other uses of the ocean, such as protected areas (e.g.,
marine reserves).
Response: NMFS agrees that offshore aquaculture facilities should
not be sited in sensitive habits. The requirement to monitor and report
baseline environmental survey data will allow NMFS to determine if
sensitive habitat exists at the site and could be impacted by
aquaculture operation.
To ensure facilities do not compete with marine reserves and other
protected areas, Sec. 622.103(a)(1) of the final rule specifies that
offshore aquaculture operations would be prohibited in Gulf EEZ marine
protected areas and marine reserves, HAPCs, Special Management Zones,
and permitted artificial reef areas and coral reef areas. Additionally,
permits other than those for aquaculture may also be required in
certain protected areas, such as within National Marine Sanctuaries,
for example. NMFS may also deny a proposed site if it is found to pose
significant risks to EFH or is otherwise inconsistent with FMP
objectives and applicable Federal law.
Comment 53: The proposed rule states that a proposed aquaculture
site could be denied if it would result in user conflicts with
recreational or commercial fishing or other marine users (e.g., oil and
gas infrastructure) and this could displace aquaculture operations to
less desirable areas.
Response: NMFS recognizes that user conflicts may result in the
denial of certain sites, however, this is not expected to result in
displacement of aquaculture operations to areas considered to be less
desirable. NMFS will work with other Federal agencies and the public to
balance the various uses of the Gulf EEZ and develop processes to
identify potential siting conflicts early in the permitting process.
Harvest and Landing Requirements
Comment 54: The requirement to land cultured fish between 6 a.m. to
6 p.m. local time is unreasonable. Restricting landing times to
daylight hours may increase production losses due to predators or
environmental factors. The ability to land at night should be allowed.
Response: NMFS agrees that restricting the time a vessel can arrive
at a dock (i.e., ``land'') with cultured fish is overly restrictive.
The regulations at 50 CFR 600.10 define ``land'' as begin offloading
fish, to offload fish, or to arrive in port or at a dock, berth, beach,
seawall, or ramp. The FMP, and the codified text in the proposed rule,
stated that species cultured at an aquaculture facility must be
``landed ashore'' between 6 a.m. and 6 p.m., local time. However, the
preamble to the proposed rule stated that permittees participating in
the aquaculture program would be allowed to ``offload'' cultured
animals at aquaculture dealers only between 6 a.m. and 6 p.m., local
time. NMFS has determined that using the more precise term ``offload''
in this context is consistent with the objective of the requirement,
which is to aid enforcement, while also allowing vessels the
flexibility to arrive at the dock at any time. By restricting
offloading times, law enforcement will be able to ensure that vessels
are landing only cultured species (e.g., secure tissue samples to be
tested against broodstock DNA). For the purposes of this requirement,
NMFS is defining the terms ``offload'' in Sec. 622.106(a)(14) to mean
``to remove cultured animals from a vessel.''
Comment 55: The requirement that cultured fish be landed whole
(with heads and fins intact) is inappropriate and should be removed.
Response: NMFS disagrees the requirement that cultured fish be
landed whole is inappropriate. Landing cultured fish with heads and
fins intact will assist enforcement agents in properly identifying
cultured species, promoting effective implementation and oversight of
program rules and regulations.
Comment 56: The requirement for permittees to notify NMFS at least
72 hours prior to harvesting fish from offshore aquaculture systems is
problematic as harvest timeframes can change due to weather and other
factors.
Response: The Council determined, and NMFS agrees, the 72-hour
notification window is necessary to allow law enforcement and NMFS
staff the opportunity to be present at a facility when harvesting
occurs to verify that permittees remain within their production cap and
that only cultured species are harvested. If the anticipated harvest
times are delayed or change due to inclement weather or other
circumstances, then permittees can update NMFS by phone or web-based
form.
Comment 57: The proposed rule states that permittees must notify
NMFS within 72 hours of landing to ensure that only cultured animals
are landed. Another way to verify that only cultured animals are landed
is by conducting tissue analysis (e.g., fatty acid composition) on
landed fish.
Response: NMFS is aware of studies which have demonstrated that
commercial feed diets fed to cultured animals can help to distinguish
these fish from their wild counterparts. However, the 72-hour
notification requirement is different as it allows law enforcement the
opportunity to intercept fish at the time of landing. NMFS will employ
genetic verification techniques, when necessary, to verify that only
cultured fish are landed.
Allowable Aquaculture Species and Systems
Comment 58: The final rule should explicitly state that only
federally managed species are allowed to be cultured in the Gulf EEZ
and explain the mechanism for managed species in the Gulf EEZ.
Response: Section 622.105(b) of the final rule states that the only
species that may be cultured in the Gulf EEZ under the FMP are species
of coastal migratory pelagic fish, Gulf reef fish, red drum, and spiny
lobster that are managed by the Council. As explained in the preamble,
anyone wishing to culture species in the Gulf EEZ that are not managed
by the Council would have to apply for an EFP. Information on applying
for an EFP can be found at 50 CFR 600.745.
Comment 59: The states should play a role in determining the type
and amount of species allowed for culture.
Response: NMFS agrees. During the development of the FMP, Council
representatives from all five Gulf states were involved in decisions
related to
[[Page 1777]]
the type and amount of species that could be cultured under a Gulf
aquaculture permit. The Council has continuing authority over
aquaculture operations in the EEZ and may modify the types and amounts
of species authorized to be cultured at any time, consistent with the
requirements of the Magnuson-Stevens Act. In addition, the RA will
consult with the Council during the public comment period on specific
permit applications as required in Sec. 622.101(d)(2)of this final
rule.
Comment 60: NMFS should require the use of advanced aquaculture
systems that avoid and minimize environmental harm.
Response: The Council determined, and NMFS agrees, that requiring
use of specific aquaculture systems is not ideal as there is a wide
array of offshore aquaculture systems that are used. Allowing
flexibility regarding aquaculture systems is necessary to ensure
systems have sufficient structural integrity and allow for innovation
as aquaculture system technology develops.
To minimize or avoid the risk of environmental harm from
aquaculture systems, the RA will review the structural integrity and
other aspects of each proposed system on a case-by-case basis. The RA
may deny use of a proposed system, or specify conditions for using a
proposed system, if it is determined to pose a significant risk to EFH,
endangered or threatened marine species, marine mammals, wild fish or
invertebrates, public health, and safety. This case-specific approach
will help improve the potential economic viability and returns of
aquaculture operations by ensuring each operation the opportunity to
use the system that best meets its production goals without
compromising environmental standards and objectives.
Comment 61: The requirement that aquaculture systems be fitted with
a locating device should be removed.
Response: NMFS disagrees. Locating devices will allow operators to
locate, and potentially retrieve, aquaculture structures in the event
that they break free or are transported away from the permitted site.
The Council determined, and NMFS agrees, this requirement is necessary
to help prevent long-term damage to habitat and increase navigational
safety.
Reportable Pathogens and Animal Health
Comment 62: Permittees should report pathogen episodes directly to
APHIS so that APHIS can confirm the presence of reportable pathogens
and take the appropriate steps to implement control or eradication
measures.
Response: NMFS disagrees that it is necessary for permittees to
report pathogen episodes directly to APHIS rather than NMFS. Section
622.102(a)(1)(i)(C) of this final rule requires permittees to report
all findings or suspected findings of any OIE or NAAHP reportable
pathogen episodes to NMFS within 24 hours of diagnosis. Upon
confirmation by an APHIS-approved reference laboratory that a
reportable pathogen exists and the determination that the pathogen
poses a significant risk to the health of wild or farmed aquatic
organisms, NMFS, in cooperation with APHIS, will take appropriate
actions, which may include the removal of all cultured animals from the
offshore aquaculture systems. The Council determined, and NMFS agrees,
this process provides the necessary safeguards to adequately address
any pathogen episodes.
Comment 63: NOAA should defer primary regulatory responsibility and
oversight of all animal health and pathogen related issues to APHIS and
address these issues in an interagency MOU.
Response: NMFS disagrees that primary regulatory responsibility for
cultured animals should be deferred to APHIS. NMFS will work in
cooperation with APHIS and aquaculture facility staff to sample
cultured animals for testing, conduct testing at APHIS-approved
laboratories, and take any actions needed to address pathogen episodes.
In regard to issuing health certificates and assisting growers with
their animal health plans for cultured animals, NMFS has determined
that these activities may be carried out by an aquatic animal health
expert as defined in Sec. 622.2 of this rule. Oversight of broader
animal health and pathogen issues for wild fish is outside of the scope
of this rule and is not addressed further.
A current MOU already exists between NMFS, APHIS and the United
States Fish and Wildlife Service (USFWS) which outlines the legal
authorities and mandates and roles and responsibilities of the three
agencies with respect to animal health.
Comment 64: NMFS should define an ``aquatic animal health expert''
as a licensed veterinarian. NMFS should also require that only
accredited veterinarians be allowed to issue health certificates and
these veterinarians should be required to have fish health experience.
Response: NMFS disagrees. Many state and Federal agencies recognize
that experts other than veterinarians are qualified to carry out
inspections, test for pathogens, issue health certificates, and assist
growers in their respective overall animal health plans. The broader
definition of ``aquatic animal health expert'' in Sec. 622.2 of this
final rule will provide the fishery greater flexibility by enabling
persons certified by the American Fisheries Society, Fish Health
Section, as a ``Fish Pathologist'' or ``Fish Health Inspector'', to
perform those general animal health functions. There is no requirement
under the Veterinary Accreditation regulations for veterinarians to
have specific experience for the animal they are working with (e.g.,
fish).
Comment 65: The final rule should include details regarding health
screening of cultured animals and specify which criteria will be used
to certify that cultured animals are free of OIE-reportable pathogens
prior to stocking.
Response: NMFS disagrees that the final rule needs to provide
additional details regarding diagnostic testing (i.e., health
screening) as these methods will vary for each cultured species and may
change over time. In regard to diagnostic techniques used to detect
OIE-reportable diseases, methods relevant to the OIE-listed diseases
can be found in the Manual of Diagnostic Tests for Aquatic Animals at:
http://www.oie.int/international-standard-setting/aquatic-manual/.
NMFS and APHIS staff will work closely with the permittee and
designated aquatic animal health expert for each facility to ensure
that appropriate diagnostic testing is conducted prior to each stocking
event. NMFS believes this process provides sufficient safeguards
against the potential spread of pathogens and disease from cultured to
wild fish at an aquaculture facility.
Comment 66: When reporting an OIE or NAAHP pathogen, notification
should be made within 48 hours of the discovery of a mortality rate of
5 percent or more that occurs within a 7-day period. NMFS should also
require that epidemiological samples be submitted to a certified
aquatic animal health expert for diagnosis.
Response: The Council determined, and NMFS agrees, the current
requirement to report all reportable pathogens within 24 hours of
diagnosis, regardless of the mortality rate of the cultured animals
affected, is necessary to ensure wild stocks and other marine resources
are appropriately safeguarded. The less conservative threshold and
reporting timeframe suggested could result in a longer period of time
before the reportable pathogen issue is
[[Page 1778]]
addressed. The current requirement will allow NMFS and other agencies
to more quickly and efficiently respond to reportable pathogen events.
NMFS will work in cooperation with APHIS and the aquaculture
facility staff to collect samples for testing, conduct testing at
APHIS-approved laboratories, and take any actions needed to address
pathogen episodes.
Aquaculture Feeds, Antibiotics, and Other Chemicals
Comment 67: NMFS should cap the amount of fish meal and fish oil
used by aquaculture operations and require the use of alternative feeds
which do not contain these ingredients.
Response: NMFS disagrees that it is necessary to specify which
feeds can and cannot be used in aquaculture. The percentage of fish
meal and fish oil used in aquaculture feeds has decreased in recent
years and continues to decrease, in part because many feeds which are
free of or low in fish meal and oil are now commercially available. The
world supply of fish meal and fish oil from pelagic fisheries has
remained relatively constant over the past 20 years at around 6 million
metric tons, even as aquaculture operations continue to expand.
Alternate ingredients being used in aquaculture feeds include soybeans,
barley, rice, peas, canola, lupine, wheat gluten, corn gluten, algae,
as well as seafood and farm animal processing co-products.
Comment 68: Farmed fish often receive large doses of antibiotics
and other chemicals to protect them from diseases and parasites. These
chemicals can have a negative impact on the marine environment as well
as human health. The use of aquaculture feeds made from wild-caught
fish could also have human health consequences.
Response: NMFS disagrees that farmed fish generally receive large
doses of antibiotics or other chemicals, and has determined that the
requirements in this final rule and the regulations promulgated by
other Federal agencies will minimize the risk of negative impacts on
the marine environment and human health. The use of antibiotics and
other therapeutant chemicals in marine aquaculture has drastically
decreased over the past several decades. In fact, the use of vaccines
to prevent bacterial diseases has in the past 20 years reduced the use
of antibiotics in marine farming by 95 percent. Effective vaccines have
significantly reduced the use of antibiotics in certain sectors of the
U.S. aquaculture industry (e.g., salmon farming). In addition to
vaccines, good nutrition and improved husbandry have continued to play
an important role in protecting cultured fish from disease and have
thus significantly reduced the use of all types of therapeutants (i.e.,
a healing or curative agent or medicine) in aquaculture. Additionally,
the use of drugs, pesticides, and biologics by NMFS permittees must
comply with all applicable FDA, EPA, and United States Department of
Agriculture (USDA) regulations, which are meant to minimize or avoid
negative impacts on the marine environment and human health.
In regard to the impact of aquaculture feeds on human health, FDA
regulates fish feeds and ingredients under the Federal Food, Drug, and
Cosmetic Act and requires animal feed to be safe and to be truthfully
labeled. To be approved by FDA for use in animal feeds, additives must
be demonstrated to be useful and to be safe to both the target animal
(fish) and human consumers.
Comment 69: The proposed rule and the FMP allow the use of
potentially harmful drugs and chemicals, including extra-label drugs,
which can negatively impact the marine environment.
Response: NMFS disagrees. This final rule and the FMP require the
use of drugs, pesticides and biologics to comply with FDA, EPA, and
USDA regulations, which are designed to prevent or minimize negative
environmental impacts. The list of drugs FDA has approved for
aquaculture can be found at: http://www.fda.gov/animalveterinary/developmentapprovalprocess/aquaculture/ucm132954.htm. The extra-label
use of drugs for aquaculture purposes is strictly regulated by FDA and
must be on the order of a licensed veterinarian.
Comment 70: The public should have access to records on the type
and quantity of drugs and other chemicals used in offshore aquaculture
as well as ongoing monitoring data for water quality and benthic
sampling. In addition, states should play a role in determining
monitoring protocols for aquaculture facilities.
Response: NMFS does not regulate drugs or chemicals used in
offshore aquaculture operations. The use of drugs, pesticides, and
biologics are under the authority of FDA, EPA, and USDA, respectively.
The EPA sets water quality monitoring protocols for offshore
aquaculture operations and collects monitoring data. Dissemination of
information collected by other Federal agencies would be subject to
data disclosure provisions that are applicable to those agencies.
NMFS may coordinate the development of monitoring protocols with
other Federal agencies or defer to other agencies if those agencies
have primary authority. In developing such protocols, NMFS may decide
to solicit input from the states and the public.
Comment 71: Aquaculture will pollute the environment.
Response: NMFS disagrees that aquaculture, if properly regulated,
will pollute the environment. The FMP and this final rule establish
numerous environmental safeguards, including siting restrictions,
monitoring and reporting requirements, and requirements to abide by
regulations of other Federal agencies (e.g., use of drugs, pesticides,
and biologics must comply with all applicable FDA, EPA, and USDA
regulations), which are designed to minimize any potential adverse
environmental effects of aquaculture operations. NMFS will review
proposed sites and systems, and may deny those that are found to pose
significant risks to marine resources or otherwise inconsistent with
all applicable law. NMFS will work with permittees to resolve any
unanticipated environmental problems or impacts that are identified
after an operation is permitted. Permits are also subject to revocation
when appropriate.
Assurance Bond
Comment 72: The assurance bond should cover costs associated with
finding, securing, and removing systems and impacts to natural
resources caused by equipment or by escaped organisms. The final rule
should also specify how much the assurance bond requirement will cost
Gulf aquaculture permit holders. Additionally, the rule should indicate
how states will be compensated for any impacts from aquaculture
operation on state resources.
Response: The assurance bond required by the FMP and this final
rule will be used to remove aquaculture structures or cultured animals
if permittees fail to do so when ordered to by NMFS. The assurance bond
cannot be used to compensate for natural resource impacts caused by
equipment or by escaped cultured animals. The Council determined, and
NMFS agrees, that it is difficult to identify and define the added cost
that would be required to compensate for such impacts, and that it is
unnecessary to do so because the FMP and this final rule include
numerous environmental safeguards (e.g., prohibitions on genetically
engineered and transgenic animals) to prevent or minimize such damage.
Additionally, the FMP and rule specify that NMFS will review the
structural integrity of proposed aquaculture systems and may deny use
of a
[[Page 1779]]
proposed system or specify conditions for its use if it is determined
to pose a significant risk to EFH, endangered or threatened marine
species, marine mammals, wild fish or invertebrate stocks, public
health, or safety.
The cost of the assurance bond will vary depending on the size and
scale of the aquaculture facility and must be enough to cover the costs
of removal of all components of the facility and cultured animals. NMFS
will publish guidance on how to comply with the assurance bond
requirement on its Web site when the rule becomes effective.
The FMP and rule do not contain a compensatory mechanism for
impacts to state marine resources resulting from aquaculture
operations. However, the FMP and rule do contain several regulatory
requirements which aim to prevent and manage adverse impacts to marine
resources from aquaculture operations. These include disease testing
prior to stocking juveniles into offshore aquaculture systems,
reporting incidences of OIE and NAAHP reportable pathogens within 24
hours, requiring that only local, native broodstock be used to produce
juveniles for stocking in offshore systems, prohibiting the use of
genetically engineered and transgenic animals for culture purposes, and
reviewing potential sites for habitat concerns prior to permitting
aquaculture operations.
In addition, Sec. 622.102 in this final rule lists various
recordkeeping and reporting requirements that will allow NMFS to work
with a permittee to resolve potential problems and environmental
impacts. Permits are also subject to revocation when appropriate.
Aquaculture Facility Inspections
Comment 73: The inspection requirement and requirements to report
the average price and weight of fish produced should be removed as it
will result in the loss of intellectual proprietary information.
Response: NMFS disagrees. The information NMFS employees and
authorized officers access during the inspection process is needed to
ensure aquaculture facilities operate in compliance with the applicable
regulations relating to aquaculture in the Gulf EEZ. All private or
intellectual property information which is required to be submitted in
compliance with the requirements of this final rule is protected by the
confidentiality of information provisions in section 402(b) of the
Magnuson-Stevens Act and 50 CFR part 600, subpart E (Sec. Sec. 600.405
through 600.425).
Broodstock and Cultured Animals
Comment 74: The final rule should define ``population'' and
``subpopulation'' for purposes of broodstock collection.
Response: NMFS disagrees that it is necessary to define
``population'' and ``subpopulation'' in the final rule. The precise
meaning of these terms may vary depending on the species or stock at
issue and will be based on the best scientific information available.
NMFS will provide guidance on the meaning of the terms ``population''
and ``subpopulation'' as it relates to broodstock collection in a
separate document which outlines specific broodstock sourcing
requirements. This document will be made available on the Web site when
the rule becomes effective.
Comment 75: Broodstock should be collected from the same population
or sub-population unless it can be shown that genetic homogeneity
exists for that species in the Gulf.
Response: NMFS agrees. The FMP and this final rule require that all
broodstock, or progeny of such broodstock, must be originally collected
from the same population or subpopulation where the aquaculture
facility is located. This requirement ensures that the genetic make-up
of cultured animals originates from the same stock where the facility
will operate. Species that are found to be genetically homogeneous
would, for all intents and purposes, be considered to be the same
population.
Comment 76: The final rule should specify requirements regarding
the frequency of broodstock collection and hatchery breeding practices.
Response: NMFS disagrees there is a need to regulate the frequency
of broodstock collection. The appropriate collection frequency will
vary depending on the size and scale of individual operations and the
species being cultured.
The FMP and this final rule allow NMFS to monitor the frequency of
broodstock collection and minimize any potential adverse impacts of
broodstock collection by requiring permittees to obtain the RA's
approval prior to each collection event. Collection requests must
include information on the number, size, and species to be harvested,
the methods, gear, and vessels to be used for capturing, holding, and
transporting broodstock, the date and specific location of the intended
harvest, and the location where the broodstock will be delivered. The
RA may deny a request to harvest broodstock if allowable methods or
gear are not proposed for use, the number of broodstock is larger than
necessary for spawning and rearing activities, or if the proposed
activity is inconsistent with FMP objectives or Federal laws.
Additionally, if a broodstock harvest request is approved, the
permittee will be required to submit a report to the RA within 15 days
of the date of harvest summarizing the number, size, and species to be
harvested, and identifying the location where the broodstock were
captured. If this information suggests that more specific requirements
pertaining to frequency of broodstock collection are necessary, the
Council may consider modifying the FMP to include such requirements.
NMFS also disagrees that hatchery breeding practices should be
regulated by this rulemaking. NMFS has determined it is more
appropriate to develop guidance on hatchery breeding protocols
separately as this will allow for the guidance to be adapted in a more
timely manner as information evolves. This guidance will be available
on the Web site when the rule becomes effective.
Comment 77: The final rule should allow cultured juveniles to be
sourced from hatcheries in foreign countries.
Response: NMFS disagrees. As stated in the preamble to this final
rule and discussed in the FMP, allowing organisms to be obtained from
non-U.S. hatcheries for grow-out would make it difficult to enforce
regulatory requirements that are intended to prevent or minimize the
environmental impacts of potential escapements (e.g., animals cannot be
genetically engineered or transgenic, must be sourced from the same
population or subpopulation that occurs where the facility is located,
must be certified as pathogen-free prior to stocking in offshore
systems, etc.). Therefore, no changes have been made to this
requirement.
Comment 78: The proposed rule states that permittees would be
required to submit a request to NMFS to harvest broodstock from the
Gulf, including state waters. The final rule should specify that this
requirement is for federally managed species only as states may have
requirements specific to state-managed species.
Response: NMFS agrees. Submission of requests to collect broodstock
is a requirement of the Gulf aquaculture permit, which allows the
culture of only those federally managed species specified in Sec.
622.105(b) of this rule. Nothing in this rule imposes requirements on
the collection of broodstock of those species that are exclusively
managed by the states.
[[Page 1780]]
However, if broodstock for allowable aquaculture species are harvested
from state waters, Sec. 622.106(a)(16)(iv) of this rule requires that
harvest also comply with all applicable state laws.
Comment 79: NMFS should monitor broodstock collection and establish
requirements to reduce or eliminate bycatch.
Response: Permittees must submit a request to NMFS to collect
broodstock which will allow NMFS to monitor broodstock collection. In
this request, permittees will specify the number and size of broodstock
proposed for capture and the gear used for capture and these requests
will need to be authorized by NMFS. Although bycatch may occur during
the capture of broodstock, the amount of bycatch is expected to be
small and negligible relative to overall bycatch occurring in each
fishery. NMFS may also deny a proposal to harvest broodstock if it was
determined that broodstock collection activities would be inconsistent
with FMP objectives related to bycatch.
Recordkeeping and Reporting Requirements
Comment 80: Permittees should be required to monitor and report
abundance and prevalence of ectoparasites on cultured and nearby wild
fish.
Response: NMFS disagrees. Ectoparasites are common in marine
ecosystems and are generally not considered a significant enough threat
to fish and human health to require additional monitoring and
reporting. If new information indicates that ectoparasites are a
greater threat to fish and human health than previously determined, the
Council may require reporting of ectoparasites in the future.
Comment 81: Permittees should be required to record and report
stocking and harvest information.
Response: NMFS agrees. Section 622.102(a)(1)(i)(A) and (D), require
permittees to report stocking and harvest information, respectively, to
NMFS at least 72 hours prior to these activities.
Comment 82: The requirement to comply with all monitoring and
reporting requirements of other Federal agencies' permits should be
removed.
Response: NMFS disagrees. Such requirements are necessary to
maintain other Federal permits which, in addition to NMFS' permit, are
necessary in order to operate offshore aquaculture facilities. Should
permittees be unable to secure the appropriate permits or comply with
applicable requirements, they would be unable to operate and thus their
Gulf aquaculture permit could be revoked or suspended.
Comment 83: The requirement to report landing transactions of
cultured animals to NMFS is duplicative to state commercial trip ticket
programs.
Response: NMFS disagrees. Currently, state trip ticket programs
only cover wild caught fish, and not cultured animals, therefore this
information is not captured at the state level. Landings and
transactions of cultured species harvested from the Gulf EEZ will be
tracked using an electronic reporting system developed by NMFS. This
system will allow NMFS to cross-check landings reported by permit
holders with dealer transactions after cultured animals are sold.
Comment 84: The final rule should require monitoring and reporting
of environmental impacts such as the discharge of feed and waste as
well as the use of antibiotics or therapeutants. The final rule should
also set limits for water quality impacts.
Response: NMFS disagrees. The use of feed, antibiotics and
therapeutants is regulated by the EPA under the Clean Water Act and is
not under the purview of NMFS. The EPA will establish limits for water
quality impacts as part of their NPDES permitting process for
individual aquaculture operations.
Socio-Economic Impacts
Comment 85: The FMP and rule should assess the impacts of offshore
aquaculture on Gulf local economies.
Response: NMFS agrees. Section 7.5 of the FMP and the Final
Regulatory Flexibility Act (FRFA) contained in this final rule assess
the economic impacts of the FMP, as required by the Magnuson-Stevens
Act, NEPA, Executive Order 12866, the RFA, and other applicable laws.
Comment 86: Aquaculture operations create few jobs and negatively
impact communities that depend on domestic wild fisheries (e.g.,
decreased market prices for wild species).
Response: It is unknown at this time to what extent Gulf offshore
aquaculture operations will directly compete with domestic wild
fisheries regionally and nationally in the long term. Should offshore
aquaculture directly compete with Gulf and other domestic wild
fisheries in the long term, there could be significant adverse economic
impacts on fishing communities (e.g., loss of jobs, and loss of revenue
due to decreased prices, value of individual fishing quota (IFQ)
shares. However, the likelihood of such adverse impacts occurring would
depend on the price, quality, and many other factors influencing market
demand of both farmed and wild-caught species.
Nonetheless, foreign imports represent a significant amount of the
current U.S. seafood, therefore, NMFS does not expect that domestically
cultured species will have a significant economic impact on traditional
fishing businesses or communities over the short term. Conversely,
aquaculture operations could provide additional means of employment,
thereby, benefitting local communities. Further discussion of the
potential economic and social impacts of aquaculture can be found in
Section 6.1.6 of the FMP.
Comment 87: The Fishery Impact Statement (FIS) in the FMP is
inadequate regarding the potential impacts of offshore aquaculture on
fishing communities.
Response: NMFS disagrees. The FIS in Section 9.0 of the FMP
summarizes detailed discussion and analysis in Section 6.0 of the FMP
of the expected impacts of all the FMP's permitting and operational
requirements and restrictions on fishing communities. The FIS concludes
permitting requirements and restrictions may adversely impact those who
are denied access to approved aquaculture sites for traditional fishing
and/or other purposes and create other adverse socioeconomic
consequences. Also, the FIS concludes that required restricted access
zones may reduce the area available for fishing and vessel transit.
The potential economic and social impacts of the FMP on domestic
fisheries are further detailed in Section 6.1.6 of the FMP. The FMP
could adversely impact fishing communities by reducing prices for
domestic wild caught product, and could benefit fishing communities by
creating new jobs in local communities related to aquaculture
operations.
EFH and Protected Resources
Comment 88: The FMP and proposed rule fail to minimize the adverse
effect of offshore aquaculture on EFH.
Response: NMFS disagrees. NMFS completed an EFH consultation on the
FMP on April 30, 2009, and concluded that the actions in the FMP would
not adversely affect EFH because of environmental safeguards such as
siting criteria (Sections 4.6 and 6.7 of the FMP) and aquaculture
system requirements (Sections 4.5 and 6.6 of the FMP) which are
intended to avoid and minimize adverse impacts of offshore aquaculture
operations on EFH and other sensitive marine habitats. For example,
offshore aquaculture would be prohibited from occurring in numerous
areas identified as EFH such as HAPCs,
[[Page 1781]]
marine reserves, marine protected areas and coral areas, and other
critical habitats would be considered during a case-by-case review of
the proposed site. The requirement to have locating devices on offshore
systems will also reduce long-term damage to EFH and marine resources
that could result from derelict gear. Additionally, NMFS will review
each individual Gulf aquaculture permit application to determine
potential impacts on EFH and consult on individual activities with
adverse impacts as required by the Magnuson-Stevens Act. As explained
in the preamble of this final rule, and in Action 6 of the FMP, NMFS
may deny an application for a Gulf aquaculture permit if it is
determined that the use of a site or system, or the aquaculture
operation as a whole, poses significant risks to EFH. Such a
determination shall be based on consultations with NMFS offices and
programs and siting and other information submitted by the permit
applicant, including the required baseline environmental survey.
Comment 89: NMFS failed to complete EFH and ESA consultations on
the FMP.
Response: NMFS disagrees. NMFS completed the EFH consultation
processes on April 30, 2009, and determined that the actions in the FMP
would not adversely affect EFH. NMFS reviewed that determination on
April 30, 2013, following preparation of the draft SFPEIS and came to
the same conclusion.
NMFS completed an ESA consultation on the FMP on May 5, 2009, and
determined that the action was not likely to adversely affect any
listed species under NMFS' purview. After reviewing new information
relating to the Deepwater Horizon MC252 oil spill that occurred in
April 2010, NMFS' Sustainable Fisheries Division determined, in a memo
dated April 18, 2013, that reinitiation of the consultation is not
required. However, in June 2015, NMFS reinitiated ESA consultation to
evaluate the effects of the FMP on three newly listed coral species,
newly designated loggerhead sea turtle critical habitat, and proposed
green sea turtle distinct population segments. That consultation,
completed on June 24, 2015, similarly determined that the fishing
activities conducted under the FMP are not likely to adversely affect
these species or critical habitat.
Comment 90: Aquaculture systems should be properly sited to avoid
blocking migratory pathways or altering habitat of ESA-listed species.
Response: As explained in the response to Comment 89, in the
completed ESA consultations, NMFS concluded that the fishing activities
conducted under the FMP will not adversely affect listed species or
their critical habitat. However, when evaluating a proposed site, NMFS
will evaluate and consider, among other things, the proximity of the
site to marine mammal migratory pathways and important habitats and
will evaluate each proposed aquaculture system and its operations for
potential risks endangered and threatened marine species and can deny a
system or specify conditions for using a system if it is determined to
pose significant risk to these species.
Comment 91: Aquaculture facilities may threaten marine animals,
including ESA-listed species, by posing an entanglement risk or
resulting in harassment or death. The final rule should address whether
there are penalties for failure to remedy or redress entanglement or
interaction issues. It should also mention if independent (i.e., third
party) monitoring or auditing is required for entanglements or
interactions, how often inspections for entanglements or interactions
should occur and who will conduct these inspections.
Response: NMFS disagrees that these facilities pose an entanglement
risk or are likely to result in harassment or death of marine animals.
As explained in the response to Comment 89, in the completed ESA
consultations, NMFS concluded that the fishing activities conducted
under the FMP will not adversely affect listed species. With respect to
entanglement risks, the consultations explained that entanglement can
be greatly reduced through the use of rigid, durable materials and by
keeping lines taut, and that in practice, most offshore marine
aquaculture facilities are constructed under these specifications. The
consultations also noted that the FMP requires applicants to provide
documentation sufficient to evaluate a system's ability to withstand
physical stresses and that there is anecdotal evidence that supports
the conclusion that interactions are rare. Consultation will be
reinitiated if new information reveals entanglement or other effects of
the action not previously considered or the identified action is
modified in a manner that may cause effects to listed species in a
manner or to an extent not previously considered.
Safeguards to minimize risks to ESA-listed species and other
wildlife are specified in Sec. Sec. 622.103(a)(4) and 622.105(a). For
example, NMFS will evaluate each proposed site, and each proposed
system and its operations, based on a number of factors including
potential risks to endangered or threatened marine species, marine
mammals, and wild fish or invertebrate stocks and can deny the use of a
site or a system based on a determination of such significant risks or
inconsistency with FMP objectives or other applicable law. The RA may
also specify conditions for using an aquaculture system based on the
determination of significant risk.
As specified in Sec. 622.106(a)(9), permittees must regularly
inspect approved aquaculture systems, including mooring and anchor
lines, for entanglements or interactions with marine mammals, protected
species, and migratory birds. Inspections will be conducted by the
permittees and the frequency of inspections will be specified as a
condition of their Gulf aquaculture permit. No independent (i.e., third
party) monitoring or auditing is required for entanglement or
interaction purposes.
Permittees are required to report to NMFS specific details of any
entanglement or interaction, within 24 hours, with marine mammals,
protected species or migratory birds, including any actions being taken
to prevent future entanglements or interactions, as specified in Sec.
622.102(a)(1)(i)(G). Violating this requirement could result in NMFS
modifying, suspending, or revoking a permit in accordance with subpart
D of 15 CFR part 904. If new information reveals entanglement or other
effects of the action not previously considered or the identified
action is modified in a manner that may cause effects to listed species
in a manner or to an extent not previously considered, NMFS will
reinitiate Section 7 consultation.
With respect to the potential harassment of marine mammals by fish
farmers, NMFS notes that this would be a violation of the Marine Mammal
Protection Act (MMPA). Permittees must comply with the MMPA and other
applicable laws.
Comment 92: NMFS should have completed a Biological Assessment or
Biological Opinion on the FMP.
Response: As explained in the response to Comment 89, NMFS
completed ESA consultations that concluded that the fishing activities
conducted under the FMP will not adversely affect listed species. These
consultations included a Biological Assessment, which is defined at 50
CFR 402.02 as the information prepared by the Federal agency concerning
listing and proposed species and designated and proposed critical
habitat that may be present in the action area and the
[[Page 1782]]
evaluation of potential effects of the action on such species and
habitat.
A Biological Opinion is required only when a proposed action is
likely to adversely affect a listed species or designated critical
habitat. Because NMFS determined the FMP is not likely to adversely
affect ESA-listed species or designated critical habitat, a Biological
Opinion was not prepared.
Comment 93: The FMP and proposed rule do not assess whether the
aquaculture facilities will ``take'' marine mammals or migratory birds.
Response: Section 6.1.4 of the FMP discusses physical interactions
of aquaculture facilities with wildlife, including marine mammals and
birds.
There is evidence to show that marine mammals can interact with
aquaculture facilities. Marine mammals can become entangled in offshore
aquaculture gear resulting in injury or death. Depredation (i.e.,
taking cultured fish from pens or other aquaculture gear) may occur at
aquaculture facilities, which can lead to an increased risk of
entanglement and may further result in retaliation by aquaculture
operators. Some marine mammal interactions have occurred at aquaculture
facilities currently operating in other areas of the United States.
Documented interactions include depredation from aquaculture pens by
wild bottlenose dolphins, aquaculture workers illegally feeding wild
bottlenose dolphins, and a depredating wild bottlenose dolphin that
became entangled by a fisherman fishing at an aquaculture pen.
Aquaculture is considered a commercial fishery under the MMPA. As
such, it will be designated on the MMPA's List of Fisheries (LOF) per
section 118 of the MMPA. The Marine Mammal Authorization Program (MMAP)
allows commercial fishing entities designated on the LOF to lawfully
incidentally take marine mammals in a commercial fishery in certain
cases: (1) A fishery classified as a Category I or II registers for and
maintains a valid MMAP certificate from NMFS (50 CFR 229.4); (2) an
observer is accommodated upon request (50 CFR 229.7); and (3) any
incidental marine mammal mortality or injury occurring in a Category I,
II, or III fishery is reported within 48 hours of the occurrence (50
CFR 229.6). NMFS previously determined that aquaculture fishing
activities would have no adverse impact on marine mammals and
aquaculture was classified as a Category III fishery in the 2015 LOF
(79 FR 77919, December 29, 2014). This classification indicates the
annual mortality and serious injury of a marine mammal stock resulting
from any fishery is less than or equal to 1 percent of the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock, while allowing that stock to reach
or maintain its optimum sustainable population. While the listed
fisheries do not specifically include the FMP or this rule, they
involve gear similar to what is expected to be used in the Gulf.
With respect to marine mammals that are listed under the ESA, NMFS
has determined that the fishing activities conducted under the FMP are
not likely to adversely affect these species because they are extremely
unlikely to overlap geographically with anticipated aquaculture sites.
Any ``takes'' of threatened and endangered marine mammals would trigger
reinitiation of the consultation.
In regard to migratory birds, there is currently no information
that would indicate that offshore marine aquaculture will result in the
``take'' of migratory birds. Section 622.102(a)(1)(i)(G) of this rule
requires permittees to regularly inspect approved aquaculture systems
and report, within 24 hours, any entanglement or interaction with
marine mammals, endangered species, or migratory birds within 24 hours
of the event. This reporting will allow NMFS to determine if there are
unanticipated interactions with migratory birds, assess the severity of
any interactions, and identify solutions for addressing and preventing
interactions.
Comment 94: Guidance documents should be reviewed regularly and
include specific criteria such as the frequency of inspections for
entanglement and interactions with protected species.
Response: NMFS agrees that guidance documents should be reviewed on
a regular basis and will coordinate with other federal agencies, as
needed, to do so. NMFS disagrees that guidance documents need to
include criteria related to the frequency of inspections for
entanglement and other interactions with protected species because
those criteria are case-specific, and will be determined on a case-by-
case basis and included as a condition in individual permits.
Escapements
Comment 95: One commenter stated that NMFS should require reporting
of all escapes, while another stated that NMFS should require reporting
when escapes exceed 5 percent of the admixed stock (wild and cultured
animals).
Response: NMFS disagrees that it is necessary to require reporting
of all escapes. Permittees are already required to report the escape,
within a 24-hour period, of 10 percent of the fish from a single
approved aquaculture system (e.g., one cage or one net pen) or 5
percent or more of the fish from all approved aquaculture systems
combined, or the escape, within any 30-day period, of 10 percent or
more of the fish from all approved aquaculture systems combined. These
amounts should allow operations to effectively quantify whether or not
losses have occurred. Specifying lower percentages would make it
difficult for permittees to quantify when and if escapement has
occurred. In addition, the current reporting requirement for escapes is
in line with escape reporting requirements of other states with
aquaculture facilities (e.g., Maine).
NMFS also disagrees that escapes should only be reported when they
exceed 5 percent of the admixed stock for that species. The number of
escapes needed to trigger reporting suggested by the commenter is much
higher than that approved in the FMP and this final rule and could
result in many more fish escaping without requiring permittees to
report to NMFS.
Comment 96: Escaped fish can displace other marine species and
pollute wild fish genetics. Escapees will also compete with wild fish
and other aquatic animals, and transmit disease and parasites to wild
stocks.
Response: NMFS agrees that escaped fish have the potential to
negatively impact wild stocks. However, as discussed in section 6.1. of
the FMP, impacts of cultured escapees on wild stocks are expected to be
minimal because this final rule requires that only native species are
allowed for culture and broodstock must be sourced from the same
population or sub-population that occurs where the operation is
located. Further, prior to stocking fish in an approved aquaculture
system, the permittee must provide documentation certifying that the
fish are pathogen free.
Comment 97: Escaped fish should be treated as a pollutant, which
would enable EPA to assess civil fines on facilities for escapes.
Response: Neither the FMP nor this final rule address the
definition of pollutant under the Clean Water Act or the EPA's
authority to assess fines under that Act. Therefore, this comment is
outside the scope of this rulemaking and will not be addressed further.
Fallowing of Aquaculture Systems
Comment 98: Permittees should have access to several marine sites
to fallow properly.
Response: NMFS disagrees that several distinct aquaculture sites
are
[[Page 1783]]
necessary to fallow properly. The Council determined, and NMFS agrees,
that the requirement in Sec. 622.103(a)(3) of this final rule is
sufficient to support any needed fallowing. That requirement specifies
that permitted sites must be at least twice as large as the combined
area encompassed by the aquaculture systems to allow operations to
conduct fallowing at a different location within the designated site
complex. If separate distinct sites were chosen for fallowing purposes,
permittees would be required to repeat the siting process multiple
times, which would include conducting multiple baseline environmental
surveys and securing additional ACOE Section 10 and EPA NPDES permits.
Thus, choosing separate fallowing sites would increase the time and
cost associated with the permitting process while fallowing at a
different location within the designated site complex would achieve the
same environmental objective at less cost.
Comment 99: Fallowing and rotation should be mandatory.
Response: NMFS disagrees. Nutrient loading and other impacts of
aquaculture on the surrounding environment can be reduced or eliminated
with proper siting of an operation. Should water quality and benthic
data indicate that fallowing is necessary to reduce or eliminate
nutrient loading, NMFS recommends the permittee implement fallowing and
rotation as a best management practice. Section 622.103(a)(4) of this
final rule also allows the RA to deny the use of a proposed site that
will inhibit the dispersal of wastes and effluents.
Genetically Engineered Animals
Comment 100: Section 622.101(a)(2)(xv) of the proposed rule would
require the applicant to certify that no genetically modified animals
(changed to ``genetically engineered animals'' in Sec. 622.2 and
throughout this final rule) or transgenic animals are used or possessed
for culture purposes at the aquaculture facility. This language should
specify that ``use'' specifically applies to the propagation process
and indicate that it applies to the act of propagation regardless of
where it occurs.
Response: NMFS agrees the FMP and this final rule prohibit the use
of genetically engineered and transgenic animals in propagation
activities used to stock aquaculture facilities. The term ``aquaculture
facility'', as defined in Sec. 622.2 of this final rule, includes all
infrastructure used to ``hold, propagate or rear aquaculture species''.
Thus, the prohibition on the ``use'' of genetically engineered and
transgenic animals applies to the holding, propagation, or rearing of
allowable aquaculture species regardless of where in the EEZ these
activities occur.
Comment 101: NMFS should develop specific standards for the use of
non-native species and genetically engineered animals for aquaculture.
Response: NMFS disagrees it is necessary to specify standards for
use of genetically engineered animals because Sec. 622.105(b) of this
rule prohibits the culture of non-native species and genetically
engineered animals in the Gulf EEZ.
Comment 102: Genetic testing should be required as a condition of
permit approval to ensure that no genetically engineered animals are
being cultured.
Response: NMFS disagrees. The Council determined, and NMFS agrees,
the certifications required as part of the application process, along
with the authority provided NMFS to conduct genetic testing at any
time, are sufficient to safeguard against genetic engineering
activities. Specifically, applicants must certify that no genetically
engineered or transgenic animals are used or possessed in the
aquaculture facility, as specified in Sec. 622.101(a)(2)(xv) of this
rule. Applicants must also certify that they agree to immediately
remove cultured animals remaining in allowable aquaculture systems from
the Gulf EEZ, as required by NMFS, if it is discovered that the animals
are genetically engineered or transgenic, as specified in Sec.
622.101(a)(2)(xii)(A). At any time, NMFS may sample cultured animals to
determine genetic lineage and will order the removal of all cultured
animals upon a determination that genetically engineered or transgenic
animals were used or possessed at the aquaculture facility, in
accordance with Sec. 622.108(a)(2).
Comment 103: NMFS should prohibit the use of animals that have been
artificially altered, including, those altered by changes in ploidy,
chemical or radiation mutagenesis, any selective breeding or assisted
reproductive technologies (ART).
Response: NMFS disagrees that it is necessary to further restrict
the use of artificially altered fish. The FMP and this final rule
prohibit Gulf aquaculture operations from culturing genetically
engineered or transgenic animals to reduce the potential impacts of
cultured fish escapes on wild populations. Section 622.2 of this final
rule defines the term ``genetically engineered animal'' to be
consistent with FDA's definition, which is ``modified by rDNA
techniques, including the entire lineage of animals that contain the
modification''. This definition does not prohibit the use of animals
that have been artificially altered by changes in ploidy, chemical, or
radiation mutagenesis, or any selective breeding or assisted
reproductive technologies, unless these animals contain genes that have
been introduced or otherwise altered by modern biotechnology.
Broadening this definition to encompass changes in ploidy, chemical or
radiation mutagenesis, any selective breeding or ART would restrict the
ability to produce specific phenotypes suitable for aquaculture. Such
techniques are commonly used in aquaculture and are not expected to
result in significant risks to wild populations should escapement
occur.
Management Reference Points and Annual Production
Comment 104: NMFS should assist the Councils in developing
compliant processes by amending the National Standard 1 Guidelines
under the Magnuson-Stevens Act to set forth a reasoned and
scientifically rigorous process for determining reference points for
aquaculture.
Response: Comments regarding changes to the National Standard 1
guidelines are outside the scope of this rulemaking. However, NMFS
notes that it is necessary to amend the National Standard 1 Guidelines
to specifically address reference points for aquaculture. Section
600.310(h)(3) of National Standard 1 Guidelines recognizes that harvest
from aquaculture operations may not fit the standard approaches to
specifying reference points and management measures set forth in the
guidelines and allows the Councils to propose alternative approaches
for satisfying the National Standard 1 requirements. As explained in
the preamble to the proposed rule, the Council selected an alternative
approach to specifying reference points and management measures for the
aquaculture fishery. NMFS has determined that the alternative approach
selected by the Council is consistent with National Standard 1.
Comment 105: Both the 64-million lb (29-million kg) annual
production limit and 20-percent production cap on a business,
individual or entity should be increased or removed.
Response: The Council determined, and NMFS agrees, these production
caps are needed to properly manage the development of the aquaculture
fishery consistent with the provisions of the Magnuson-Stevens Act.
Theoretically, the Gulf has an offshore aquaculture production
capacity threshold which, if exceeded, could adversely affect wild
stocks or the
[[Page 1784]]
marine environment (e.g., water quality and habitat). When developing
the FMP, the Council considered capping annual production (or OY/ACL)
at various levels, ranging from 16 million lb (7.3 million kg) to 190
million lb (86 million kg), to constrain production below that
threshold level.
As explained in the FMP, the Council set the production cap equal
to 64 million lb (29 million kg), which represents the average landings
of all marine species in the Gulf, except menhaden and shrimp, during
2000-2006. In the absence of specific information on the threshold
level above which aquaculture could adversely affect wild stocks or the
marine environment, the Council determined that setting an annual
production cap based on the productivity of wild stocks would enable
the fishery to proceed with caution while we obtain more information
about the number and size of aquaculture operations, the production
capacity of various aquaculture systems, and the environmental impacts
and economic sustainability of aquaculture.
Although 64 million lb (29 million kg) is likely substantially less
than the yield that can be achieved by aquaculture operations over the
long-term, this annual production cap is considered to be a short-term
proxy and can be revisited by the Council at any time as new
information becomes available. If planned production exceeds the cap in
a given year, then NMFS will publish a control date to notify future
participants that entry into the aquaculture fishery may be limited or
restricted after the control date, and the Council will initiate review
of the aquaculture program, and the annual limit, to determine whether
the cap should be increased or some other action is appropriate.
The Council also evaluated various entity-specific production caps,
ranging from 5- to 20-percent of the OY/ACL, to ensure entities do not
obtain an excessive share of the OY/ACL, consistent with National
Standard 4 of the Magnuson-Stevens Act. The Council determined that
capping the production of businesses, individuals, and other entities
at 20 percent of the OY/ACL will effectively ensure against possible
anti-competitive effects resulting from a small number of entities
accounting for most or all of the aquaculture production. The 20-
percent entity-specific production cap will allow each business,
individual, or other entity to produce up to 12.8 million lb (5.8
million kg) annually, and may be revisited in the future as needed and
appropriate.
Comment 106: The FMP should discuss what data or processes are
needed to determine a meaningful MSY and OY for cultured animals. OY
must be set at a level equal to or less than MSY to account for ``any
relevant social, economic, or ecological factors'' and it (like other
reference points) must account for risk as directed by National
Standard 6. The FMP should also discuss how overfished and overfishing
status will be determined for cultured fish and how this will be linked
to the status of wild stocks.
Response: Section 4 of the FMP explains the challenge in applying
management reference points and status determination criteria to
cultured species because those parameters are designed to inform
decisions about the level at which wild fish stocks can be routinely
exploited without resulting in long-term depletion.
As discussed in the FMP, the Magnuson-Stevens Act was written in
part to establish the legal framework for managing wild fisheries
resources of the United States, and many of the principles and concepts
that guide wild stock management are not generally applicable to the
management of an aquaculture fishery. However, aquaculture falls within
the definition of ``fishing'' in the Magnuson-Stevens Act and is
therefore subject to regulation by the fishery management councils and
to the legal requirements to define management reference points and
status determination criteria that will be used to assess fishery
performance and status relative to the Magnuson-Stevens Act's mandates
to prevent overfishing and achieve the OY from managed fisheries.
The FMP explains that all animals cultured are intended for harvest
and there is no need to leave cultured animals in aquaculture systems
to support future generations and guard against long-term depletion.
However, it is conceivable that some level of aquaculture in the Gulf
could adversely impact wild stocks or the marine environment.
Therefore, the Council determined the most logical approach was to use
proxies and define management reference points and status determination
criteria for the aquaculture fishery in a way that is intended to
constrain production below that critical threshold level.
The Council set the MSY of the Gulf aquaculture fishery at 64
million lb (29 million kg). This value is based on the productivity of
wild stocks and equals the average landings of all marine species in
the Gulf except menhaden and shrimp during 2000-2006. In the absence of
specific information on the threshold level above which aquaculture
could adversely affect wild stocks or the marine environment, the
Council determined that setting MSY based on the productivity of wild
stocks would enable the fishery to proceed with caution while we obtain
more information about the number and size of aquaculture operations,
the production capacity of various aquaculture systems, and the
environmental impacts and economic sustainability of aquaculture.
NMFS guidance at 50 CFR 600.310 states OY should be based on MSY as
reduced by social, economic, and biological factors, with the most
important limiting factor being that the choice of OY and the
conservation and management measures proposed to achieve it must
prevent overfishing. To the extent that harvesting MSY would result in
adverse impacts to resources in the Gulf, OY may be reduced to a level
where such adverse impacts do not occur. Because MSY is specified at a
level that is believed to avoid such impacts, and all animals cultured
are intended for harvest, the Council determined there are no social,
economic, or ecological factors that support setting OY below MSY at
this time.
Although 64 million lb (29 million kg) is likely substantially less
than the yield that can be achieved by aquaculture operations over the
long-term, the FMP explains that both the MSY and OY values are
considered to be short-term proxies, which the Council may revise at
any time in the future as the aquaculture fishery develops and provides
additional information on the number and size of aquaculture
operations, the production capacity of various aquaculture systems, and
the environmental impacts and economic sustainability of aquaculture.
This precautionary and adaptive approach is consistent with NMFS
guidance for implementing National Standard 6 at 50 CFR 600.335.
Also, because it is not possible to overharvest cultured animals,
the Council determined the most logical way to assess the impacts of
overharvest in aquaculture operations is not on the cultured fish
actually harvested, but on the wild stocks remaining in the surrounding
environment. The FMP specifies that NMFS will use overfished and
overfishing criteria established in existing FMPs for wild stocks to
determine if offshore aquaculture in the Gulf EEZ is adversely
affecting wild fish populations, causing them to become overfished or
undergo overfishing. If aquaculture operations are determined
[[Page 1785]]
to cause such effects, then the Council and NMFS will take action(s)
that could include, but are not limited to, reducing aquaculture
production levels, removing cultured animals containing pathogens, and
reevaluating facility siting locations to avoid habitat degradation.
State Involvement
Comment 107: NMFS must acquire Coastal Zone Management Act (CZMA)
consistency determinations from all of the Gulf states before the final
rule is issued.
Response: NMFS agrees and determined the FMP is consistent to the
maximum extent practicable with the enforceable policies of the
approved coastal management program of Florida, Alabama, Mississippi,
Louisiana, and Texas. This determination was submitted on February 24,
2009, for review by the responsible state agencies under section 307 of
the CZMA. Florida, Alabama, Mississippi, and Louisiana responded that
the measures in the FMP are consistent with their coastal management
program. Texas has previously informed NMFS that the state's Coastal
Coordination Council no longer reviews fishery management issues,
therefore, in accordance with the provisions of 15 CFR 930.41, NMFS
presumes concurrence.
Comment 108: NMFS should provide states advance notice of when
animals are harvested or transported as these activities require
transit across state waters. States should also have access to
monitoring and reporting records required by NMFS, and should be
promptly notified of any pathogen or escape event, or other event that
may pose a risk to state resources.
Response: NMFS will notify state law enforcement agencies in
advance of aquaculture harvest and transport activities. Also, NMFS
will notify the appropriate state agencies upon confirmation that a
reportable pathogen discovery, major escapement event, or other event
that may pose a risk to state resources, has occurred. Monitoring and
reporting records are generally confidential under section 402(b) of
the Magnuson-Stevens Act. However, the Magnuson-Stevens Act provides an
exception that allows disclosure of confidential information to state
employees, as necessary, to further the Department of Commerce's
mission, subject to a confidentiality agreement that prohibits public
disclosure of the identity or business of any person. The Magnuson-
Stevens Act also provides an exception for employees of states that
have entered into a fishery enforcement agreement with the Secretary of
Commerce and that agreement is in effect. All of the Gulf states have
confidentiality agreements and joint enforcement agreements in place
and would therefore be authorized access to monitoring and reporting
records, as needed, and consistent with those exceptions.
Comment 109: States should have the ability to approve or deny an
application before NMFS' final approval.
Response: NMFS disagrees. States may provide comments on individual
permits during the public comment period, but as with other NMFS
permits, states will not have the ability to approve or deny an
application. The RA will consult with the Council during the public
comment period on specific permit applications as required in Sec.
622.101(d)(2) of this final rule. Each state has a representative on
the Council and NMFS will consider Council input and comments received
when deciding whether to approve or deny a permit.
Comment 110: The proposed rule does not mention an ``opt-out''
provision for states, which means aquaculture may occur within 3 miles
(5 km) of shore.
Response: NMFS disagrees. The FMP and rule pertain only to the Gulf
EEZ which starts at 3 nautical miles from shore off the coast of
Louisiana, Mississippi and Alabama and 9 nautical miles from shore off
the coast of Texas and the west coast of Florida. Although some Gulf
states have promulgated regulations to conduct aquaculture in state
waters (e.g., Florida) others would need to do so before establishing a
permitting system for aquaculture operations.
Restricted Access Zones
Comment 111: NMFS should remove the prohibition on commercial or
recreational fishing inside the ``restricted access zone''. Permittees
should have the ability to negotiate access to their sites for fishing
purposes if they so choose.
Response: The Council determined, and NMFS agrees, that restricted
access zones are needed to afford some protection to an operation's
equipment and the product being cultured, and to promote safety by
reducing encounters between vessels and aquaculture equipment.
Comment 112: Restricted access zones will displace commercial and
recreational fishermen from large areas of the ocean. Aquaculture
operations will also attract fish away from their usual habitats and
this will impact fishermen who cannot fish for these species within the
boundaries of restricted access zones.
Response: NMFS recognizes that restricted access zones would
displace fishermen from certain areas; however, the area utilized by
the estimated 5-20 offshore aquaculture operations envisioned under the
FMP is not expected to be significant considering the total area of the
Gulf EEZ and is therefore not expected to result in significant
displacement issues. NMFS will consider the location of a proposed site
relative to traditional fishing grounds during the permit review
process and may deny use of a proposed site if it may result in user
conflicts with commercial or recreational fishermen. Information used
by NMFS for siting a facility in regard to proximity to commercial and
recreational fishing grounds would include, but is not limited to,
electronic logbooks from the shrimp fishery, logbook reported fishing
locations, siting information from previously proposed or permitted
aquaculture facilities, and other data that would provide information
regarding how the site would interact with other fisheries, including
public comments on the application.
Restricting access around a facility may protect species known to
aggregate around aquaculture systems. However, the area encompassed by
aquaculture systems is not expected to be significant compared to the
Gulf EEZ as a whole. Although fishermen would be prohibited from
fishing within restricted access zones, they could fish along the
periphery of the operation, which would provide access to species which
aggregate in the general area.
Comment 113: The size of the restricted access zone should be
determined by NMFS and not correspond to the coordinates specified in
the ACOE Section 10 permit. The final rule should also specify how
large restricted access zones should be and who will enforce them.
Response: The Council determined, and NMFS agrees, that setting the
restricted access zone corresponding to the coordinates on the ACOE
Section 10 permit is appropriate.
Per Sec. 622.2 of this final rule, an aquaculture facility is
defined as an installation or structure, including any aquaculture
systems (including moorings), hatcheries, equipment, and associated
infrastructure used to hold, propagate, or rear allowable aquaculture
species. The Council wanted to establish a narrow area around the
aquaculture facility that would afford some protection to aquaculture
equipment and cultured animals as well as well as increase safety by
reducing encounters between vessels and aquaculture equipment. While
the
[[Page 1786]]
ACOE Section 10 permit will delimit where aquaculture systems may be
anchored to the sea floor, the Council action and this rule require
that the applicant apply for an ACOE Section 10 permit that is twice as
large as the combined area of the aquaculture systems in order to allow
for best management practices such as the rotation of systems for
fallowing. As such, the facility will be twice as large as the combined
area of the aquaculture systems within it but the boundary of the
facility will be the same as the boundary of the ACOE Section 10 permit
because this final rule requires that the applicant apply for an ACOE
permit of that size.
NMFS anticipates that the ACOE will issue and enforce its Section
10 permit under its own authorities. NMFS is establishing and will
enforce the restricted access zone under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act. The two processes are
separate but, because, NMFS is requiring the applicant to apply for an
ACOE Section 10 permit of a size that is coextensive with the
definition of a facility (including being twice the size of the
combined area of the aquaculture systems within it), NMFS is choosing
to use the ACOE Section 10 permit coordinates as the same coordinates
for the restricted access zone.
There is no predetermined size of the restricted access zone as it
depends on the information contained in each permittee's Section 10
permit. Authorized officers have the authority to enforce restricted
access zones. An ``authorized officer'' is defined in 50 CFR 600.10 as:
(1) Any commissioned, warrant, or petty officer of the USCG; (2) any
special agent or fishery enforcement officer of NMFS; (3) any officer
designated by the head of any Federal or state agency that has entered
into an agreement with the Secretary and the Commandant of the USCG to
enforce the provisions of the Magnuson-Stevens Act or any other statute
administered by NOAA; or (4) any USCG personnel accompanying and acting
under the direction of any person described in (1).
Comment 114: NMFS should coordinate with the USCG in regards to
siting offshore aquaculture facilities and marking ``restricted access
zones.''
Response: NMFS agrees and is working with USCG and other Federal
agencies as part of the Interagency Working Group's Aquaculture
Regulatory Task Force to coordinate the siting, review and permitting
of offshore aquaculture facilities, including marking of offshore
aquaculture facilities and restricted access zones.
Comment 115: The USCG requests that Sec. 622.104(a) be amended to
state that the boundaries of the restricted access zone will correspond
with the coordinates listed on the approved ACOE Section 10 permit
associated with the aquaculture facility ``and in addition, must
ultimately be approved by the U.S. Coast Guard''. The USCG also
requests that Sec. 622.104(c) be amended to state that the permittee
must mark the restricted access zone with a floating device such as a
buoy at each corner of the zone ``as authorized by the U.S. Coast
Guard.''
Response: NMFS disagrees that it is appropriate to require that the
U.S. Coast Guard provide approval of the restricted access zone. As
stated in the response to Comment 113, the Council determined, and NMFS
agrees that a restricted access zone equal to coordinates on the ACOE
Section 10 permit is appropriate because these coordinates define the
boundary of the site where aquaculture operations may occur.
NMFS also agrees with the second part of this comment and has made
the suggested change to Sec. 622.104(c).
Changes From the Proposed Rule
In June 2015, NMFS consulted with the Council on the following
fourteen changes from the proposed to final rule. At that time, the
representative from Florida expressed concern about using FDA's
definition of ``genetically engineered animal'' and submitted a comment
on behalf of the Florida Fish and Wildlife Commission (FWC). FWC's
comment stated that FDA's definition of ``genetically engineered
animal'' was too narrowly defined because it did not encompass the use
of ``in vitro'' nucleic acid techniques. NMFS consulted with FDA and
has determined that the definition of ``transgenic animal'' in the FMP
and this final rule encompasses the use of ``in vitro'' techniques.
Both ``genetically engineered'' and ``transgenic'' animals are
prohibited for culture purposes in this final rule, therefore no change
to the definition of ``genetically engineered animal'' is necessary.
The term ``genetically modified organism'' has been revised to
``genetically engineered animal'' throughout this final rule. The term
``genetically engineered animal'' is a more scientifically precise
term, more accurately describes the use of modern biotechnology and is
consistent with FDA terminology. In addition, the definition for
``genetically engineered animal'' has been added to Sec. 622.2 and the
definition for ``genetically modified organism'' has been removed from
Sec. 622.2. See NMFS response to Comment 2 above for the complete
explanation.
Also, in Sec. 622.2, the definition for ``aquaculture'' is
modified slightly based on public comment. In the proposed rule, the
definition stated, ``aquaculture means all activities, including the
operation of an aquaculture facility, involved in the propagation and
rearing, or attempted propagation and rearing, of allowable aquaculture
species in the Gulf EEZ.'' This wording can be interpreted to mean that
to engage in ``aquaculture,'' both propagation and rearing need to be
conducted. In this final rule, NMFS revises the definition of
``aquaculture'' by changing an ``and'' to an ``or'' in two places in
this definition in Sec. 622.2. This change clarifies that to engage in
``aquaculture'' requires only that propagation or rearing need to be
conducted.
The definition of ``aquaculture facility'' in Sec. 622.2 is
modified based on public comment. In the proposed rule, the definition
stated, ``Aquaculture facility means an installation or structure,
including any aquaculture system(s) (including moorings), hatcheries,
equipment, and associated infrastructure used to hold, propagate, and
rear allowable aquaculture species in the Gulf EEZ under authority of a
Gulf aquaculture permit.'' This wording can be interpreted to mean that
all three of these activities need to be conducted (holding,
propagating, and rearing) to be considered an aquaculture facility.
However, NMFS has determined that only one of these activities needs to
be conducted to be considered an aquaculture facility. Therefore, in
this final rule, NMFS revises ``hold, propagate, and rear'' to ``hold,
propagate, or rear.''
NMFS is revising the definition of ``significant risk'' in Sec.
622.2. When the Council reviewed and deemed this definition in February
2013, it stated: ``Significant risk means is likely to adversely affect
endangered or threatened species or their critical habitat; is likely
to seriously injure or kill marine mammals; is likely to result in un-
mitigated adverse effects on essential fish habitat; is likely to
adversely affect wild fish stocks, causing them to become overfished or
undergo overfishing; or otherwise may result in harm to public health
or safety, as determined by the RA.'' The proposed rule contained a
modification to this definition with respect to endangered and
threatened species, defining ``significant risk,'' in part, as ``likely
to jeopardize the continued existence of endangered or threatened
species or adversely modify their
[[Page 1787]]
critical habitat.'' The proposed rule also expressly solicited comments
on this part of the definition. After considering public comments, and
further internal review, NMFS has determined that the definition of
``significant risk'' as it relates to endangered and threatened species
should be modified to reflect the text originally deemed by the
Council. As explained in the response to Comment 1, this change will
better align the ESA-related criterion in the definition with the
criteria for marine mammals, EFH, wild fish stocks and public health
and safety.
A prohibition has been added to Sec. 622.13 to state that it is
unlawful to land allowable aquaculture species cultured in the Gulf at
non-U.S. ports, unless first landed at a U.S. port. This prohibition
was reasonably foreseeable because it was contained in the FMP and
because the proposed rule included the requirement that a Gulf
aquaculture dealer permit is necessary to first receive fish cultured
at an aquaculture facility. Section 622.101(b) in the proposed rule
provided that to obtain a Gulf aquaculture permit, ``the applicant must
have a valid state wholesaler's license in the state(s) where the
dealer operates, if required by such state(s), and must have a physical
facility at a fixed location in such state(s).'' The references to a
state wholesaler's license and physical facility at fixed location in
the state are a clear indication that those authorized to first receive
allowable aquaculture species must be located in the U.S.
In Sec. 622.101, the requirement in paragraph (a)(2)(viii) is
moved to paragraph (d)(3) of that section in this final rule, because
the requirement to submit to NMFS a copy of currently valid Federal
permits (e.g., ACOE Section 10 permit, and EPA NPDES permit), prior to
issuance of a Gulf aquaculture permit, better fits in the permit
issuance paragraph of the permits section of the aquaculture
regulations.
In Sec. 622.101(a)(2)(xiii), language is added that when
permittees provide certification information that all broodstock being
used were originally harvested from U.S. waters of the Gulf, they must
also certify that the broodstock came from the same population or
subpopulation (based on the best scientific information available)
where the facility is located, and that each individual broodstock was
marked or tagged at the hatchery to allow for identification of those
individuals used in spawning. This language was contained in the FMP
and discussed in the preamble of the proposed rule; however, it was not
in the proposed codified text. Based on public comment, NMFS determined
this should be added to the regulations in the final rule. Also in this
section, NMFS is changing ``were originally harvested'' to ``will be or
were originally harvested.'' This is intended to clarify that the
applicant is not required to know the location of broodstock harvest at
the time the application is submitted to NMFS but still ensures any
broodstock used in the future will be from U.S. waters in the Gulf and
from the same population or subpopulation where the facility is
located.
In Sec. 622.101(d)(2)(ii)(B), the language is revised. In the
proposed rule, grounds for denial of a Gulf aquaculture permit include,
``based on the best scientific information available, issuance of a
permit would pose significant risk to the well-being of wild fish
stocks . . .'' However, in this final rule, NMFS has removed ``to the
well-being of'' to be consistent with the language in the preamble
which states that NMFS may deny a permit that would ``pose significant
risk'' to marine resources.
Throughout this final rule, NMFS changes ``baseline environmental
assessment'' to ``baseline environmental survey.'' Some public comments
indicated that using the term ``baseline environmental assessment'' is
confusing to the public because the term ``environmental assessment''
is used to refer to a document that may be prepared under the National
Environmental Policy Act. To make it clear that the ``baseline
environmental assessment'' required by this final rule is not the same
as an ``environmental assessment'' that may be prepared under NEPA, the
term is revised to ``baseline environmental survey'' in Sec. Sec.
622.101(a)(2)(v) and 622.103(a)(4) of the regulations. In addition,
this final rule clarifies that permittees are required to submit
baseline environmental survey data to NMFS in accordance with
procedures specified by NMFS in guidance which will be available on the
Web site when the rule becomes effective.
Language has been added to Sec. 622.102(a)(1)(i)(A) regarding
record keeping and reporting requirements for aquaculture facility
owners and operators that permittees are to maintain and make available
to NMFS or an authorized officer upon request a written or electronic
daily record of the number of cultured animals introduced into and the
total pounds and average weight of fish removed from each approved
aquaculture system, including mortalities, for the most recent 3 years.
This language was contained in the FMP and discussed in the preamble of
the proposed rule but was not specifically contained in the codified
text in the proposed rule. Therefore, NMFS adds this language to the
regulations in this final rule.
Paragraph (D) has been added to Sec. 622.102(a)(1)(i) regarding a
harvest notification. NMFS is requiring that permittees record the
date, time, and weight of cultured animals to be harvested and report
this information to NMFS at least 72 hours prior to harvesting cultured
animals from an aquaculture facility. This harvest notification is
intended to aid law enforcement efforts. The notification would alert
law enforcement in the case they wish to be present at the time of
harvest at an aquaculture facility to verify that permittees are
harvesting only cultured species and remain within their production
cap. This 72-hour harvest notification was contained in the FMP and the
preamble to the proposed rule but was not contained in the codified
text in the proposed rule. NMFS adds it to the codified text in this
final rule.
Paragraph (H) has been added to Sec. 622.102(a)(1)(i) regarding
feed invoices for aquaculture operations. The preamble in the proposed
rule stated that the original or copies of purchase invoices for feed
must be provided to NMFS or an authorized officer upon request, and be
maintained for a period of 3 years. However, this requirement was not
included in the codified text in the proposed rule because NMFS
included the reference to the EPA regulations at 40 CFR 451.21, which
NMFS believed covered these feed reporting requirements. After further
evaluation, NMFS has determined that the 3-year requirement to maintain
the feed purchase invoices is not contained in the EPA regulations;
therefore, NMFS has added that requirement to the regulations in this
final rule.
In Sec. 622.104(c), the caveat ``as authorized by the USCG'' is
added to the requirement that the permittee must mark the restricted
access zone with a floating device such as a buoy at each corner of the
zone. This is intended to clarify that the floating devices used to
mark the restricted access zone must be authorized by USCG.
NMFS is replacing the phrase ``landed ashore'' to the term
``offload''. The proposed rule preamble stated that permittees
participating in the aquaculture program would be allowed to
``offload'' cultured animals at aquaculture dealers only between 6 a.m.
and 6 p.m., local time. However, the codified text in the proposed
rule, and language in the FMP, stated that species cultured at an
aquaculture facility can
[[Page 1788]]
only be ``landed ashore'' between 6 a.m. and 6 p.m., local time,
because at the time the FMP was written, it was determined that
``land'' was the appropriate term. NMFS has determined that using the
more precise term ``offload'' in this context is consistent with the
objective of the requirement, which is to aid enforcement, while
allowing vessels the flexibility to arrive at the dock at any time. By
restricting offloading times, law enforcement will be able to ensure
that vessels are landing only cultured species (e.g., secure tissue
samples to be tested against broodstock DNA). Using the term
``offload'' is also consistent with similar requirements in the Gulf
red snapper and grouper/tilefish individual fishing quota programs. For
the purposes of this requirement, NMFS is defining the terms
``offload'' in Sec. 622.106(a)(14) to mean to remove cultured animals
from a vessel.
In addition to the changes described above, NMFS is making an
administrative change to the permitting process in response to several
comments regarding the permit duration, some of which stated that the
initial 10-year permit term is not long enough to secure financing and
others which stated that the permit term should be a shorter period to
ensure permits are thoroughly reviewed on a more frequent basis. NMFS
is modifying the requirements in Sec. 622.101(d)(3)(iii) to allow the
applicant to defer initial issuance of a Gulf aquaculture permit for up
to 2 years from the date the RA notifies the applicant of the decision
to grant the permit. Specifically, NMFS is adding language to the end
of this provision which states that the initial permit will be issued
30 days after the RA notifies the applicant of the decision to grant
the permit, unless NMFS receives a written request from the applicant
before the end of the 30 day period to defer issuance of the permit. If
the applicant requests a deferral, NMFS will include this information
in the notification of permit approval published in the Federal
Register as specified in paragraph (d)(2)(ii) and will publish a
Federal Register notice upon permit issuance. Permit issuance will be
deferred for two years from the date of the RA notification unless the
applicant sends a written request to NMFS to issue the permit at an
earlier date. This written request must be received by NMFS at least 30
days prior to the date the applicant desires the permit to be
effective.
This change is intended to allow permit holders additional time to
secure financing and prepare for production without changing the 10-
year effective period of the initial issuance. This change will not
modify the requirement to have a valid permit to engage in the
activities specified in the rule, such as deploying or operating an
aquaculture facility in the Gulf EEZ, harvesting wild broodstock, and
selling allowable aquaculture species. This change was reasonably
foreseeable because the 10-year initial permit term has been subject to
substantial public debate, putting interested persons on notice that
NMFS may revise the regulations to address concerns that it may take
several years for an applicant to be ready to start operations once the
permit is granted while maintaining the 10-year permit term specified
in the FMP and included in the proposed rule. The proposed rule did not
specify when permits would be issued. The public may have inferred that
a permit would be issued contemporaneously with the decision to grant
the permit. However, the proposed rule provided for an extended review
time and required that applicants submit complete application materials
at least 180 days prior to the date they wished the permit to become
effective. The proposed rule also required that the applicant obtain
other Federal permits applicable to the proposed aquaculture site
before issuance of the Gulf aquaculture permit. Therefore, the concept
of a permit being issued and effective well after completion of the
application was part of both the agency's and the public's deliberation
on this issue.
In the proposed rule, NMFS estimated the time to prepare a Federal
Permit Application for Offshore Aquaculture in the Gulf of Mexico,
including the supporting documentation (baseline environmental survey,
assurance bond, contract with aquatic animal health expert, emergency
disaster plan) to be approximately 33 hours. However, based upon public
comment received, NMFS understands that the time to complete these
requirements was underestimated. The time to complete the Federal
Permit application for Offshore Aquaculture in the Gulf of Mexico
remains 3 hours, however, NMFS has recalculated the time to complete
the assurance bond, contract with aquatic animal health expert, and
emergency disaster plan to be 39 hours total, not including the
baseline environmental survey. NMFS estimates the time to complete the
baseline environmental survey (collecting data and analyses) could take
up to 320 hours (the proposed rule had included an estimate of 24
hours), depending on the location and size of the proposed site. NMFS
also added the following to the collections and associated public time
burden table: Notification to delay permit issuance, Marine Mammal
Authorization Program form (OMB Control No. O648-0292), pinger/location
device, marking restricted access zone, and genetic testing
requirements.
Classification
The Regional Administrator, Southeast Region, NMFS, has determined
that this final rule is necessary for the conservation and management
of wild and cultured fisheries in the Gulf EEZ and is consistent with
the FMP, the Magnuson-Stevens Act and other applicable law.
This final rule has been determined to be significant, but not
economically significant, for purposes of Executive Order 12866 because
it may raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866.
In compliance with section 604 of the RFA, NMFS prepared a FRFA for
this final rule. The FRFA uses updated information, when available, and
analyzes the anticipated economic impacts of the final actions and any
significant economic impacts on small entities. The FRFA is below.
(1) A statement of the need for, and objections of, the rule.
The description of the action, why it is being considered and the
legal basis for the rule are contained in the preamble of the proposed
rule and in the SUPPLEMENTARY INFORMATION section of the preamble of
this final rule.
(2) A statement of the significant issues raised by the public
comments in response to the IRFA, a statement of the assessment of the
agency of such issues, and a statement of any changes made in the
proposed rule as a result of such comments.
NMFS did not receive any comments in response to the IRFA.
(3) The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the proposed rule.
NMFS consulted with the Small Business Administration's (SBA) Chief
Counsel for Advocacy during drafting of the proposed rule; NMFS
addressed the Chief Counsel's comments within the proposed rule. No
comments were filed by the Chief Counsel in response to the published
proposed rule.
(4) A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available.
First, this rule will apply to businesses that seek to locate
[[Page 1789]]
aquaculture or hatchery operations in the Gulf EEZ. These businesses
engage in finfish farming and hatcheries (NAICS 112511) and shellfish
farming and hatcheries (NAICS 112512). Second, this rule will apply to
businesses that seek to purchase cultured animals from the Gulf EEZ.
These businesses are expected to be fish and seafood merchant
wholesalers (NAICS 424460), fresh and frozen seafood processors (NAICS
311712), supermarkets and other grocery (NAICS 445110), fish and
seafood markets (NAICS 445220), warehouse clubs and superstores (NAICS
452910), and full-service restaurants (NAICS 722110). Third, this rule
will apply to businesses that engage in commercial and for-hire finfish
and shellfish fishing (NAICS 114111, 114112, 114119, and 487210) in the
Gulf EEZ because this final rule establishes restricted access zones.
The SBA small business size standards for these industries are stated
in the following table.
------------------------------------------------------------------------
SBA small business size
Industry NAICS code standard
------------------------------------------------------------------------
Aquaculture and Hatchery Permit
------------------------------------------------------------------------
Finfish Farming & Hatcheries 112511 $0.75 million.
Shellfish Farming & 112512 $0.75 million.
Hatcheries.
------------------------------------------------------------------------
Dealer Permit
------------------------------------------------------------------------
Seafood Product Preparation 311712 500 employees
& Packaging.
Fish and Seafood Merchant 424460 100 employees
Wholesalers.
Supermarkets and Other 445110 $32.5 million.
Grocery.
Fish and Seafood Markets.... 445220 $7.5
Warehouse Clubs and 452910 $29.5 million.
Superstores.
Full Service Restaurants.... 722511 $7.5 million.
------------------------------------------------------------------------
Restricted Access Zones
------------------------------------------------------------------------
Finfish Fishing............. 114111 $20.5 million.
Shellfish Fishing........... 114112 $5.5 million.
Other Marine Fishing........ 114119 $7.5 million.
Charter boat fishing........ 487210 $7.5 million.
------------------------------------------------------------------------
At present, there are no businesses, large or small, with offshore
aquaculture or hatchery operations in the Gulf EEZ and none that
purchase cultured animals from the Gulf EEZ.
Although unused oil and gas platforms in the Gulf EEZ could provide
initial structures for offshore hatcheries, it is expected that
hatcheries used by offshore aquaculture operations will be land-based,
and the start-up and operating costs of offshore hatcheries, if any,
would greatly exceed the SBA size standard of $0.75 million in average
annual receipts.
NMFS estimates that because of distances from shore, depths of
waters, Gulf weather and sea conditions, and other environmental
factors, the smallest economically viable offshore aquaculture
operation in the Gulf EEZ would raise finfish in 6 cages, requiring an
initial investment of $2.89 million ($1.5 million for an aquaculture
support vessel, $0.96 million for six cages and associated equipment,
$0.33 million for land and onshore support facilities, and $0.1 million
for service vessels). Total variable cost (feed, fingerlings, trips to
and from cages, etc.) for one grow-out cycle is expected to exceed $1
million. These figures exceed the SBA size standard for businesses in
finfish aquaculture which is no more than $0.75 million in average
annual receipts. Although technological improvements, such as automated
systems, selective breeding, and alternative feeds, have and will
continue to reduce the above estimated costs, the changes have not
reduced start-up and operating costs below the size standard.
Based on the above estimates of the magnitude of initial investment
and operating costs, NMFS expects that any businesses that would seek
to develop and locate an aquaculture or hatchery operation in the Gulf
EEZ would not be considered small businesses under the SBA size
standards.
As of March 31, 2015, there are 296 businesses with a Gulf and
South Atlantic dealer permit. The numbers of vessels with a Gulf
fishing permit are used to estimate that up to 7,352 vessels and
businesses engaged in commercial fishing and up to 2,836 vessels and
businesses engaged in for-hire fishing could be directly regulated by
the rule. Although the actual number of businesses is expected to be
less than those figures, NMFS expects a substantial number of the
businesses that operate these fishing vessels have annual revenues less
than the relevant SBA small business size standard, and, therefore, are
small businesses.
(5) A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record.
This rule will require any small business that intends to purchase
farmed fish or shellfish from the Gulf EEZ at the first point of sale
to apply for and be issued a Gulf aquaculture dealer permit. The
additional annual cost to any of the existing dealers that applies for
the aquaculture dealer permit will be $12.50, and the only additional
information required by the dealer will be to check the box requesting
a Gulf aquaculture permit.
The cost to any small business that is not currently a dealer will
be $50.00 annually. It is estimated that the average time required by
these businesses to complete the application for an annual Gulf
aquaculture dealer permit will be 20 minutes, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and reviewing the collection of
information. The Gulf aquaculture dealer application requirements are
consistent with existing dealer application requirements and no special
skills are required to prepare a dealer permit application.
This rule will also prohibit a small business's fishing vessel from
fishing or transiting within the restricted access zone of an offshore
aquaculture facility,
[[Page 1790]]
unless the vessel has a copy of that facility's aquaculture permit
onboard.
(6) A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
As stated in the IRFA, NMFS expects this rule will not have a
significant adverse economic impact on a substantial number of small
entities. Although the rule could potentially reduce annual dockside
revenues and increase transportation costs for small businesses in
commercial and for-hire fishing if the zones are located in traditional
fishing and transiting areas, NMFS may deny use of a proposed site if
it is found to result in user conflicts with commercial or recreational
fishermen or other marine resource users.
Three alternatives, including the status quo no-action alternative,
were considered for the action to establish a Gulf aquaculture permit.
This rule would support the development of a commercial offshore
aquaculture industry in the Gulf EEZ by creating a transferrable permit
that authorizes commercial offshore aquaculture and hatchery operations
in Federal waters of the Gulf. The no-action alternative would not
support the development of a commercial offshore aquaculture industry
in the Gulf EEZ, because the only existing means of permitting similar
activities, an Exempted Fishing Permit (EFP) or a Letter of
Acknowledgment, are not viable options for authorizing commercial
offshore aquaculture or hatchery operations. The third alternative
would support the development of commercial offshore aquaculture in the
Gulf EEZ by creating two transferrable permits--an operations permit
and a siting permit--with separate processes. However, the separation
of the permitting process would be expected to increase the time and
costs required to obtain the necessary permits to engage in commercial
offshore aquaculture and could generate unexpected negative
consequences such as creating compatibility issues between approved
operation plans and permitted sites (e.g., aspects of a specific
operation plan may only be appropriate if the operation is to occur at
a certain site).
Three alternatives, including the status quo no-action alternative,
were considered for the action to establish marine aquaculture and
hatchery siting requirements and conditions. The rule would restrict
the areas where aquaculture and hatcheries can occur, the distance
between sites, and the total area of each site in the Gulf EEZ. The no-
action alternative would allow offshore aquaculture and hatchery
facilities to be located anywhere the ACOE would permit, potentially
including historical or recently important fishing areas. This
alternative would have the greatest potential of directly impacting
fishing by allowing aquaculture and hatchery operations to be located
in important harvest areas. The third alternative would establish
marine aquaculture zones and restrict aquaculture and hatchery sites to
these zones. Although the third alternative would establish zones that
do not conflict with important fishing areas, this alternative would
reduce the flexibility of site location, which could require the use of
inferior sites with higher start-up and operational costs. Also,
confining aquaculture and hatchery operations to designated zones could
result in density problems with associated environmental and economic
costs. The rule would give aquaculture and hatchery operations greater
flexibility in locating their operations than the third alternative,
and would be expected to reduce or eliminate the siting of aquaculture
and hatchery facilities in important fishing areas, which would reduce
or eliminate any direct costs this alternative would impose on
commercial and for-hire fishing businesses that fish in these important
areas.
Four alternatives, including the status quo no-action alternative,
were considered for the action to specify the species allowed for
aquaculture and included in the Aquaculture FMU. This rule would allow
the aquaculture and inclusion in the Aquaculture FMU of all species
native to the Gulf that are managed by the Council, except shrimp and
corals. The no-action alternative would allow the aquaculture of any
species native to the Gulf and not develop an Aquaculture FMU. The
third alternative would restrict the set of allowable species for
aquaculture and inclusion in the Aquaculture FMU to species native to
the Gulf and in the reef fish, red drum, and coastal migratory pelagics
FMPs. This alternative would allow the smallest number of species to be
aquacultured among the alternatives considered, which could result in
the smallest economic benefit to offshore aquaculture operations and,
conversely, the smallest amount of direct competition with Gulf
fishermen. The fourth alternative would allow the aquaculture and
inclusion in the Aquaculture FMU of all species native to the Gulf that
are managed by the Council, except goliath and Nassau grouper, shrimp,
and corals. This alternative would allow the aquaculture of more
species than the third alternative but fewer species than the no-action
alternative. This rule will allow for the aquaculture of the second
largest number of species among the alternatives considered, which
represents, potentially, the second highest economic benefit to
offshore aquaculture operations and second highest potential economic
costs to Gulf fishermen as a result of market competition and other
externalities. The species prohibitions of the rule, however, are
consistent with the understanding that shrimp aquaculture is more
appropriate for land-based systems, and coral harvest, except as
allowed under a live rock permit or for scientific research, is
prohibited in the Gulf EEZ.
Two alternatives, including the status quo no-action alternative,
and multiple sub-alternatives were considered for the action to
establish a production cap for individual entities. This rule will
limit the annual production of an individual entity or corporation to
12.8 million lb (5.8 million kg), round weight, which is 20 percent of
the maximum 64 million lb (29 million kg), round weight, OY. The no-
action alternative would not limit the production of individual
entities. The two sub-alternative production caps would establish lower
caps than the rule, limiting the production by an individual entity to
either 5 or 10 percent of the OY. Each of these sub-alternatives would
be expected to result in lower economic benefits to aquaculture
producers and associated businesses, because the lower caps may
adversely affect the ability to take advantage of greater economies of
scale. Conversely, the lower the cap, the greater the number of
potential individual aquaculture producers and associated potential
increase in economic and social benefits derived from increased
competition. The 20-percent cap implemented in this final rule was
selected by the Council as a reasonable limit on production
concentration while still enabling the potential realization of
economy-of-scale benefits.
This final rule contains collection-of-information requirements
subject to the PRA, which have been approved by OMB under control
number 0648-0703.
The collections and the associated estimated average public
reporting
[[Page 1791]]
burden per response are provided in the following table.
------------------------------------------------------------------------
Collection requirement Estimated burden per response
------------------------------------------------------------------------
Federal Permit Application for 3 hours.
Offshore Aquaculture in the Gulf
of Mexico (for new permits and
renewals).
Notification to Delay Permit 10 minutes.
Issuance.
Annual Report.................... 10 minutes.
Baseline Environmental Survey.... 320 hours.
Certification for Broodstock and 10 minutes.
Juveniles.
Request to Harvest Broodstock.... 30 minutes.
Broodstock Post-Harvest Report... 30 minutes.
Request to Transfer Gulf 3 hours.
Aquaculture Permit.
Notification of Entanglement or 30 minutes.
Interaction.
Marine Mammal Authorization 10 minutes.
Program Form.
Notification of Major Escapement 30 minutes.
Event.
Notification of Reportable 30 minutes.
Pathogen Episode.
Notification to Transport 10 minutes.
Cultured Juveniles to Offshore
Systems.
Harvest and Landing Notification. 30 minutes.
Bill of Lading................... 5 minutes.
Dealer Permit Application........ 30 minutes.
Dealer Report for Landing and 30 minutes.
Sale.
Assurance Bond................... 16 hours.
Contract with Aquatic Animal 16 hours.
Health Expert.
Emergency Disaster Plan.......... 4 hours.
Fin Clip Samples................. 10 hours.
Broodstock Marking Requirement... 8 hours.
Pinger/Location Device........... 8 hours.
Marking Restricted Access Zone... 8 hours.
Genetic Testing.................. 8 hours.
------------------------------------------------------------------------
NMFS has recalculated the estimated time it will take to prepare a
permit application and supporting documents (assurance bond, contract
with a certified aquatic animal health expert, emergency disaster plan)
to be approximately 39 hours (3 hours for the application, 16 hours
each for the assurance bond and contract with certified aquatic animal
health expert, and 4 hours for the emergency disaster plan). This
estimate does not include the time necessary to complete a baseline
environmental survey.
NMFS estimates that the time to complete the baseline environmental
survey (collecting data and analyses) could take up to 320 hours (the
proposed rule had included an estimate of 24 hours), depending on the
location and size of the proposed site.
These estimates of the public reporting burden include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collections-of-information.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with, a collection-of-information subject to the requirements
of the PRA, unless that collection-of-information displays a currently
valid OMB control number.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as small entity compliance
guides. As part of the rulemaking process, NMFS prepared a fishery
bulletin, which also serves as a small entity compliance guide. The
fishery bulletin will be sent to all interested parties.
List of Subjects
50 CFR Part 600
Administrative practice and procedures, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics.
50 CFR Part 622
Aquaculture, Fisheries, Fishing, Gulf of Mexico, Reporting and
recordkeeping requirements.
Dated: January 4, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 600 and 622
are amended as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for part 600 continues to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. In Sec. 600.725, in paragraph (v), in the table under the heading
``IV. Gulf of Mexico Fishery Management Council'', the entry ``21.
Offshore aquaculture (FMP)'' is added to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(v) * * *
------------------------------------------------------------------------
Fishery Authorized gear types
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
IV. Gulf of Mexico Fishery Management Council
------------------------------------------------------------------------
* * * * *
21. Offshore aquaculture (FMP)............ Cages, net pens
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
* * * * *
[[Page 1792]]
PART 622--FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH
ATLANTIC
0
3. The authority citation for part 622 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
4. In Sec. 622.1, in Table 1, an entry for ``FMP for Regulating
Offshore Marine Aquaculture in the Gulf'' is added in alphabetical
order to read as follows:
Sec. 622.1 Purpose and scope.
* * * * *
Table 1 to Sec. 622.1--FMPs Implemented Under Part 622
------------------------------------------------------------------------
Responsible
fishery
FMP title management Geographical area
council(s)
------------------------------------------------------------------------
* * * * * * *
FMP for Regulating Offshore GMFMC............ Gulf.
Marine Aquaculture in the
Gulf.
* * * * * * *
------------------------------------------------------------------------
0
5. In Sec. 622.2, definitions for ``Aquaculture'', ``Aquaculture
facility'', ``Aquaculture system'', ``Aquatic animal health expert'',
``Cultured animals'', ``Genetically engineered animal'', ``Significant
risk'', ``Transgenic animal'' and ``Wild fish'' are added in
alphabetical order to read as follows:
Sec. 622.2 Definitions and acronyms.
* * * * *
Aquaculture means all activities, including the operation of an
aquaculture facility, involved in the propagation or rearing, or
attempted propagation or rearing, of allowable aquaculture species in
the Gulf EEZ.
Aquaculture facility means an installation or structure, including
any aquaculture system(s) (including moorings), hatcheries, equipment,
and associated infrastructure used to hold, propagate, or rear
allowable aquaculture species in the Gulf EEZ under authority of a Gulf
aquaculture permit.
Aquaculture system means any cage, net pen, enclosure, structure,
or gear deployed in waters of the Gulf EEZ for holding and producing
allowable aquaculture species.
* * * * *
Aquatic animal health expert means a licensed doctor of veterinary
medicine or a person who is certified by the American Fisheries
Society, Fish Health Section, as a ``Fish Pathologist'' or ``Fish
Health Inspector.''
* * * * *
Cultured animals means animals which are propagated and/or reared
by humans.
* * * * *
Genetically engineered animal means an animal modified by rDNA
techniques, including the entire lineage of animals that contain the
modification. The term genetically engineered animal can refer to both
animals with heritable rDNA constructs and animals with non-heritable
rDNA constructs (e.g., those modifications intended to be used as gene
therapy).
* * * * *
Significant risk means likely to adversely affect endangered or
threatened species or their critical habitat; is likely to seriously
injure or kill marine mammals; is likely to result in un-mitigated
adverse effects on essential fish habitat; is likely to adversely
affect wild fish stocks and cause them to become overfished or undergo
overfishing; or otherwise may result in harm to public health or
safety, as determined by the RA.
* * * * *
Transgenic animal means an animal whose genome contains a
nucleotide sequence that has been intentionally modified in vitro, and
the progeny of such an animal.
* * * * *
Wild fish means fish that are not propagated or reared by humans.
* * * * *
0
6. In Sec. 622.4, in the introductory text, a sentence is added after
the second sentence to read as follows:
Sec. 622.4 Permits and fees--general.
* * * See subpart F of this part for permit requirements related to
aquaculture of species other than live rock. * * *
* * * * *
0
7. In Sec. 622.13, paragraphs (pp) and (qq) are revised and paragraphs
(rr) and (ss) are added to read as follows:
Sec. 622.13 Prohibitions--general.
* * * * *
(pp) Fail to comply with any provision related to the Offshore
Marine Aquaculture program in the Gulf of Mexico as specified in this
part.
(qq) Falsify any information required to be submitted regarding the
Offshore Marine Aquaculture program in the Gulf of Mexico as specified
in this part.
(rr) Land allowable aquaculture species cultured in the Gulf at
non-U.S. ports, unless first landed at a U.S. port.
(ss) Fail to comply with any other requirement or restriction
specified in this part or violate any provision(s) in this part.
0
8. Subpart F is added to read as follows:
Subpart F--Offshore Marine Aquaculture in the Gulf of Mexico
Sec.
622.100 General.
622.101 Permits.
622.102 Recordkeeping and reporting.
622.103 Aquaculture facilities.
622.104 Restricted access zones.
622.105 Allowable aquaculture systems and species.
622.106 Aquaculture operations.
622.107 Limitation on aquaculture production.
622.108 Remedial actions.
622.109 Adjustment of management measures.
Sec. 622.100 General.
This subpart provides the regulatory structure for enabling
environmentally sound and economically sustainable aquaculture in the
Gulf EEZ. Offshore marine aquaculture activities are authorized by a
Gulf aquaculture permit or Gulf aquaculture dealer permit issued under
Sec. 622.101 and are conducted in compliance with the provisions of
this subpart. Aquaculture of live rock is addressed elsewhere in this
part and is exempt from the provisions of this subpart.
(a) Electronic system requirements. (1) The administrative
functions associated with this aquaculture program, e.g., registration
and account setup, landing transactions and most reporting
requirements, are intended to be accomplished online via the Southeast
Regional Office's Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/aquaculture/ therefore, a
participant must have access
[[Page 1793]]
to a computer and Internet access and must set up an appropriate online
aquaculture account to participate. Assistance with online functions is
available from the Permits Office, Monday through Friday between 8 a.m.
and 4:30 p.m. eastern time; telephone: 1 (877) 376-4877. If some online
reporting functions are not available at the time of initial
implementation of this aquaculture program, this will be indicated on
the Web site and participants may comply by submitting the required
information via email using the appropriate forms that are available on
the Web site. Once online functions are available, participants must
comply by using the online system unless alternative methods are
specified.
(2) The RA will mail each person who is issued a Gulf aquaculture
permit or a Gulf aquaculture dealer permit information and instructions
pertinent to using the online system and setting up an online
aquaculture account. The RA also will mail each permittee a user
identification number and will provide each permittee a personal
identification number (PIN) in a subsequent letter. Each permittee must
monitor his/her online account and all associated messages and comply
with all online reporting requirements.
(3) During catastrophic conditions only, the RA may authorize use
of paper-based components for basic required functions as a backup to
what would normally be reported electronically. The RA will determine
when catastrophic conditions exist, the duration of the catastrophic
conditions, and which participants or geographic areas are deemed
affected by the catastrophic conditions. The RA will provide timely
notice to affected participants via publication of notification in the
Federal Register, NOAA weather radio, fishery bulletins, and other
appropriate means and will authorize the affected participants' use of
paper-based components for the duration of the catastrophic conditions.
NMFS will provide each aquaculture permittee the necessary paper forms,
sequentially coded, and instructions for submission of the forms to the
RA. The paper forms also will be available from the RA. The program
functions available to participants or geographic areas deemed affected
by catastrophic conditions may be limited under the paper-based system.
Assistance in complying with the requirements of the paper-based system
will be available via the Permits Office, Monday through Friday between
8 a.m. and 4:30 p.m., eastern time; telephone: 1 (877) 376-4877.
(b) [Reserved]
Sec. 622.101 Permits.
(a) Gulf aquaculture permit. For a person to deploy or operate an
aquaculture facility in the Gulf EEZ or sell or attempt to sell, at the
first point of sale, an allowable aquaculture species cultured in the
Gulf EEZ, a Gulf aquaculture permit must have been issued to that
person for that aquaculture facility, and the permit must be
prominently displayed and available for inspection at the aquaculture
facility. The permit number should also be included on the buoys or
other floating devices used to mark the restricted access zone of the
operation as specified in Sec. 622.104(c).
(1) Eligibility requirement for a Gulf aquaculture permit.
Eligibility for a Gulf aquaculture permit is limited to U.S. citizens
as defined in the Immigration and Nationality Act of 1952, as amended,
and permanent resident aliens lawfully accorded the privilege of
residing permanently in the U.S. in accordance with U.S. immigration
laws.
(2) Application for a Gulf aquaculture permit. Application forms
are available from the RA. A completed application form and all
required supporting documents must be submitted by the applicant (in
the case of a corporation, an officer; in the case of a partnership, a
general partner) to the RA at least 180 days prior to the date the
applicant desires the permit to be effective. An applicant must provide
all information indicated on the application form including:
(i) Applicant's name, address, and telephone number.
(ii) Business name, address, telephone number, date the business
was formed, and, if the applicant is a corporation, corporate structure
and shareholder information.
(iii) Information sufficient to document eligibility as a U.S.
citizen or permanent resident alien.
(iv) Description of the exact location (i.e., global positioning
system (GPS) coordinates) and dimensions of the proposed aquaculture
facility and proposed site, including a map of the site to scale.
(v) A baseline environmental survey of the proposed aquaculture
site. The assessment must be conducted, and the data, analyses, and
results must be summarized and presented, consistent with the
guidelines specified by NMFS. NMFS' guidelines will include methods and
procedures for conducting diver and video surveys, measuring
hydrographic conditions, collecting and analyzing benthic sediments and
infauna, and measuring water quality characteristics. The guidelines
will be available on the Web site and from the RA upon request.
(vi) A list of allowable aquaculture species to be cultured;
estimated start up production level by species; and the estimated
maximum total annual poundage of each species to be harvested from the
aquaculture facility.
(vii) Name and address or specific location of each hatchery that
would provide juvenile animals for grow-out at the proposed aquaculture
facility located within the Gulf EEZ and a copy of all relevant, valid
state or Federal aquaculture permits issued to the hatchery.
(viii) A description of the aquaculture system(s) to be used,
including the number, size and dimensions of the aquaculture system(s),
a description of the mooring system(s) used to secure the aquaculture
system(s), and documentation of the aquaculture system's ability to
withstand physical stress, such as hurricanes, wave energy, etc.,
including a copy of any available engineering analysis.
(ix) A description of the equipment and methods to be used for
feeding, transporting, maintaining, and removing cultured species from
aquaculture systems.
(x) A copy of the valid USCG certificate of documentation or, if
not documented, a copy of the valid state registration certificate for
each vessel involved in the aquaculture operation; and documentation or
identification numbers for any aircraft or vehicles involved.
(xi) Documentation certifying that:
(A) the applicant agrees to immediately remove cultured animals
remaining in approved aquaculture systems from the Gulf EEZ as ordered
by the RA if it is discovered that the animals are genetically
engineered or transgenic;
(B) the applicant agrees to immediately remove cultured animals
remaining in approved aquaculture systems from the Gulf EEZ as ordered
by the RA if fish are discovered to be infected with a World
Organization of Animal Health (OIE) reportable pathogen that represents
a new detection in the Gulf or a new detection for that cultured
species in the U.S. is found at the facility, or additional pathogens
that are subsequently identified as reportable pathogens in the
National Aquatic Animal Health Plan (NAAHP), or any other pathogen
determined by NMFS and APHIS to pose a significant threat to the health
of wild aquatic organisms; and,
(C) the applicant agrees to immediately remove all components of
the aquaculture system and cultured
[[Page 1794]]
animals remaining in approved aquaculture systems from the Gulf EEZ as
ordered by the RA if there are any other violations of the permit
conditions or regulations other than those listed in paragraphs
(a)(2)(xi)(A) and (B) of this section which causes the RA to order such
removal.
(xii) Documentation certifying the applicant has obtained an
assurance bond sufficient to cover the costs of removal of all
components of the aquaculture facility, including cultured animals
remaining in approved aquaculture systems, from the Gulf EEZ. The
assurance bond would not be required to cover the costs of removing an
oil and gas platform. The RA will provide applicants a form and
associated guidance for complying with the assurance bond requirement.
The applicant must also provide documentation certifying the applicant
has established a standby trust fund into which any payments made
towards the assurance bond can be deposited. The trustee of the standby
trust may not be the same entity as the permittee. The assurance bond
is payable at the discretion of the RA to a designee as specified in
the bond or to a standby trust. When the RA directs the payment into a
standby trust, all amounts paid by the assurance bond provider must be
deposited directly into the standby trust fund for distribution by the
trustee in accordance with the RA's instructions. A permittee will be
deemed to be without the required financial assurance in the event of
bankruptcy of the trustee or issuing institution, or a suspension or
revocation of the authority of the trustee institution to act as
trustee or of the institution issuing the assurance bond. The permittee
must establish other financial assurance within 60 days after such an
event.
(xiii) Certification by the applicant that all broodstock, or
progeny of such wild broodstock, used to provide juveniles to the
aquaculture facility will be or were originally harvested from U.S.
waters of the Gulf, and will be or were from the same population or
subpopulation (based on the best scientific information available)
where the facility is located, and that each individual broodstock was
marked or tagged at the hatchery to allow for identification of those
individuals used in spawning.
(xiv) Certification by the applicant that no genetically engineered
or transgenic animals are used or possessed for culture purposes at the
aquaculture facility.
(xv) Copy of a contractual arrangement with an identified aquatic
animal health expert to provide services to the aquaculture facility
has been obtained. A copy of the license or certification also must be
provided to NMFS.
(xvi) A copy of an emergency disaster plan, developed for and to be
used by the operator of the aquaculture facility, that includes,
procedures for preparing or if necessary removing aquaculture systems,
aquaculture equipment, and cultured animals in the event of a disaster
(e.g., hurricane, tsunami, harmful algal bloom, chemical or oil spill,
etc.);
(xvii) Any other information concerning the aquaculture facility or
its operations or equipment, as specified on the application form.
(xviii) Any other information that may be necessary for the
issuance or administration of the Gulf aquaculture permit, as specified
on the application form.
(b) Gulf aquaculture dealer permit. For a dealer to receive fish
cultured by an aquaculture facility in the Gulf EEZ, that dealer must
first obtain a Gulf aquaculture dealer permit. However, an owner or
operator of an aquaculture facility with a Gulf aquaculture permit may
purchase juvenile fish for grow-out from a hatchery located in the Gulf
EEZ without obtaining a dealer permit. To obtain a dealer permit, the
applicant must have a valid state wholesaler's license in the state(s)
where the dealer operates, if required by such state(s), and must have
a physical facility at a fixed location in such state(s).
(1) Application for a Gulf aquaculture dealer permit. Application
forms are available from the RA. The application must be submitted by
the owner (in the case of a corporation, an officer; in the case of a
partnership, a general partner). Completed application forms and all
required supporting documents must be submitted to the RA at least 30
days prior to the date on which the applicant desires to have the
permit made effective. An applicant must provide the following:
(i) A copy of each state wholesaler's license held by the dealer.
(ii) Name, address, telephone number, date the business was formed,
and other identifying information of the business.
(iii) The address of each physical facility at a fixed location
where the business receives fish from an aquaculture facility in the
Gulf EEZ.
(iv) Name, address, telephone number, other identifying
information, and official capacity in the business of the applicant.
(v) Any other information that may be necessary for the issuance or
administration of the permit, as specified on the application form.
(2) [Reserved]
(c) Permit requirements for other aquaculture-related activities.
For a person to do any of the following, such person must have in his/
her possession and make available upon request by NMFS or an authorized
officer, a copy of a valid Gulf aquaculture permit with an original
(not copied) signature of the permit owner or owner's agent:
(1) Possess or transport fish in or from the Gulf EEZ to be
cultured at an aquaculture facility (e.g., brood stock, fingerlings) or
possess or transport fish from an aquaculture facility for landing
ashore and sale.
(2) Operate, in support of aquaculture related activities, any
vessel, vehicle, or aircraft authorized for use in operations related
to an aquaculture facility, i.e., those registered for aquaculture
operation use.
(3) Harvest and retain on board a vessel live wild broodstock for
use in an aquaculture facility regardless of where the broodstock is
harvested or possessed.
(d) Permit-related procedures--(1) Fees. A fee is charged for each
application for a permit submitted under this section and for each
request for renewal, transfer or replacement of such permit. The amount
of each fee is calculated in accordance with the procedures of the NOAA
Finance Handbook, available from the RA, for determining the
administrative costs of each special product or service. The fee may
not exceed such costs and is specified with each application form. The
appropriate fee must accompany each application or request for renewal,
transfer or replacement.
(2) Review and notifications regarding a Gulf aquaculture permit.
(i) The RA will review each application and make a preliminary
determination whether the application is complete. An application is
complete when all requested forms, information, and documentation have
been received. If the RA determines that an application is complete,
notification of receipt of the application will be published in the
Federal Register with a brief description of the proposal and
specifying the intent of NMFS to issue a Gulf aquaculture permit. The
public will be given up to 45 days to comment, and comments will be
requested during public testimony at a Council meeting. The RA will
consult with other Federal agencies, as appropriate, and the Council
concerning the permit application during the period in which public
comments have been requested. The RA will notify the applicant in
advance of any Council meeting at which the application will be
considered, and offer the applicant the
[[Page 1795]]
opportunity to appear in support of the application. The RA may
consider revisions to the application made by the applicant in response
to public comment before approving or denying it.
(ii) As soon as practicable after the opportunity for public
comment ends, the RA will notify the applicant and the Council in
writing of the decision to grant or deny the Gulf aquaculture permit.
If the RA grants the permit, the RA will publish a notification of the
permit approval in the Federal Register. If the RA denies the permit,
the RA will advise the applicant, in writing, of the reasons for the
denial and publish a notification in the Federal Register announcing
the denial and the basis for it. Grounds for denial of a Gulf
aquaculture permit include the following:
(A) The applicant has failed to disclose material information or
has made false statements with respect to any material fact, in
connection with the Gulf aquaculture permit application;
(B) Based on the best scientific information available, issuance of
the permit would pose significant risk to wild fish stocks, marine
mammals, threatened or endangered species, essential fish habitat,
public health, or safety; or,
(C) Activities proposed to be conducted under the Gulf aquaculture
permit are inconsistent with aquaculture regulations in this section,
the management objectives of the FMP, or the Magnuson-Stevens Act or
other applicable law.
(D) Use of the proposed site is denied based on the criteria set
forth in Sec. 622.103(a)(4).
(3) Initial issuance. (i) Upon receipt of an incomplete
application, the RA will notify the applicant of the deficiency. If the
applicant fails to correct the deficiency within 60 days of the date of
the RA's letter of notification or request an extension of time by
contacting the NMFS Southeast Regional Office before the end of the 60-
day timeframe, the application will be considered abandoned.
(ii) Prior to issuance of a Gulf aquaculture permit, a copy of
currently valid Federal permits (e.g., ACOE Section 10 permit, and
Environmental Protection Agency (EPA) National Pollutant Discharge
Elimination System (NPDES) permit) applicable to the proposed
aquaculture site, facilities, or operations, must be submitted to NMFS.
(iii) The RA will issue an initial permit to an applicant after the
review and notification procedures set forth in paragraph (d)(2)(i) of
this section are complete and the decision to grant the permit is made
under paragraph (d)(2)(ii) of this section. The initial permit will be
issued 30 days after the RA notifies the applicant of the decision to
grant the permit, unless NMFS receives a written request from the
applicant before the end of the 30 day period to defer issuance of the
permit. If the applicant requests a deferral, NMFS will include this
information in the notification of permit approval published in the
Federal Register as specified in paragraph (d)(2)(ii) of this section
and will publish a Federal Register notice upon permit issuance. Permit
issuance will be deferred for two years from the date of the RA
notification unless the applicant sends a written request to NMFS to
issue the permit at an earlier date. This written request must be
received by NMFS at least 30 days prior to the date the applicant
desires the permit to be effective.
(4) Duration. A Gulf aquaculture permit will initially be issued
for a 10-year period and may be renewed in 5-year increments
thereafter. An aquaculture dealer permit is an annual permit and must
be renewed annually. A permit remains valid for the period specified on
it unless it is revoked, suspended, or modified pursuant to subpart D
of 15 CFR part 904 or the aquaculture facility is sold and the permit
has not been transferred or the dealership is sold. Once the
aquaculture permit is no longer valid, all components of the
aquaculture facility, including cultured animals remaining in approved
aquaculture systems, must be removed immediately from the Gulf EEZ.
(5) Transfer. (i) A Gulf aquaculture permit is transferable to an
eligible person, i.e., a U.S. citizen or permanent resident alien if
the geographic location of the aquaculture site remains unchanged. An
eligible person who acquires an aquaculture facility that is currently
permitted and who desires to conduct activities for which a permit is
required may request that the RA transfer the permit to him/her. At
least 30 days prior to the desired effective date of the transfer, such
a person must complete and submit to the RA or via the Web site a
permit transfer request form that is available from the RA. The permit
transfer request form must be accompanied by the original Gulf
aquaculture permit, a copy of a signed bill of sale or equivalent
acquisition papers, and a written agreement between the transferor and
transferee specifying who is assuming the responsibilities and
liabilities associated with the Gulf aquaculture permit and the
aquaculture facility, including all the terms and conditions associated
with the original issuance of the Gulf aquaculture permit. All
applicable permit requirements and conditions must be satisfied prior
to a permit transfer, including any necessary updates, e.g., updates
regarding required certifications, legal responsibility for assurance
bond, other required permits, etc. The seller must sign the back of the
Gulf aquaculture permit, and have the signed transfer document
notarized. Final transfer of a Gulf aquaculture permit will occur only
after the RA provides official notice to both parties that the
transferee is eligible to receive the permit and that the transfer is
otherwise valid.
(ii) An aquaculture dealer permit is not transferable.
(6) Renewal. An aquaculture facility owner or aquaculture dealer
who has been issued a permit under this subpart must renew such permit
consistent with the applicable duration of the permit specified in
paragraph (d)(4) of this section. The RA will mail an aquaculture
facility owner or aquaculture dealer whose permit is expiring an
application for renewal at least 6 months prior to the expiration date
of a Gulf aquaculture facility permit and approximately 2 months prior
to the expiration date of an aquaculture dealer permit. An aquaculture
facility owner or aquaculture dealer who does not receive a renewal
application from the RA within the time frames indicated in this
paragraph must contact the RA and request a renewal application. The
applicant must submit a completed renewal application form and all
required supporting documents to the RA at least 120 days prior to the
date on which the applicant desires to have a Gulf aquaculture permit
made effective and at least 30 days prior to the date on which the
applicant desires to have an aquaculture dealer permit made effective.
If the RA receives an incomplete application, the RA will notify the
applicant of the deficiency. If the applicant fails to correct the
deficiency within 60 days of the date of the RA's letter of
notification or request an extension of time by contacting the NMFS
Southeast Regional Office before the end of the 60 day timeframe, the
application will be considered abandoned.
(7) Display. A Gulf aquaculture permit issued under this section
must be prominently displayed and available for inspection at the
aquaculture facility. The permit number should also be included on the
buoys or other floating devices used to mark the restricted access zone
of the operation as specified
[[Page 1796]]
in Sec. 622.104(c). An aquaculture dealer permit issued under this
section, or a copy thereof, must be prominently displayed and available
on the dealer's premises. In addition, a copy of the dealer's permit,
or the aquaculture facility's permit (if the fish have not yet been
purchased by a dealer), must accompany each vehicle that is used to
receive fish harvested from an aquaculture facility in the Gulf EEZ. A
vehicle operator must present the permit or a copy for inspection upon
the request of an authorized officer.
(8) Sanctions and denials. A Gulf aquaculture permit or aquaculture
dealer permit issued pursuant to this section may be revoked,
suspended, or modified, and such permit applications may be denied, in
accordance with the procedures governing enforcement-related permit
sanctions and denials found at subpart D of 15 CFR part 904.
(9) Alteration. A Gulf aquaculture permit or aquaculture dealer
permit that is altered, erased, or mutilated is invalid.
(10) Replacement. A replacement Gulf aquaculture permit or
aquaculture dealer permit may be issued. An application for a
replacement permit is not considered a new application.
(11) Change in application information. An aquaculture facility
owner or aquaculture dealer who has been issued a permit under this
subpart must notify the RA within 30 days after any change in the
applicable application information specified in paragraphs (a) or (b)
of this section. If any change in the information is not reported
within 30 days aquaculture operations may no longer be conducted under
the permit.
Sec. 622.102 Recordkeeping and reporting.
(a) Participants in Gulf aquaculture activities addressed in this
subpart must keep records and report as specified in this section.
Unless otherwise specified, required reporting must be accomplished
electronically via the Web site. See Sec. 622.100(a)(3) regarding
provisions for paper-based reporting in lieu of electronic reporting
during catastrophic conditions as determined by the RA. Recordkeeping
(i.e., maintaining records versus submitting reports) may, to the
extent feasible, be maintained electronically; however, paper-based
recordkeeping also is acceptable.
(1) Aquaculture facility owners or operators. An aquaculture
facility owner or operator must comply with the following requirements:
(i) Reporting requirements--(A) Transport of fingerlings/juvenile
fish to an aquaculture facility. Report the time, date, species and
number of cultured fingerlings or other juvenile animals that will be
transported from a hatchery to an aquaculture facility at least 72
hours prior to transport. This information may be submitted
electronically via the Web site or via phone. In addition, permittees
are to maintain and make available to NMFS or an authorized officer
upon request a written or electronic daily record of the number of
cultured animals introduced into and the total pounds and average
weight of fish removed from each approved aquaculture system, including
mortalities, for the most recent 3 years.
(B) Major escapement. Report any major escapement or suspected
major escapement within 24 hours of the event. Major escapement is
defined as the escape, within a 24-hour period, of 10 percent of the
fish from a single approved aquaculture system (e.g., one cage or one
net pen) or 5 percent or more of the fish from all approved aquaculture
systems combined, or the escape, within any 30-day period, of 10
percent or more of the fish from all approved aquaculture systems
combined. The report must include the items in paragraphs
(a)(1)(i)(B)(1) through (6) of this section and may be submitted
electronically via the Web site. If no major escapement occurs during a
given year, an annual report must be submitted via the Web site on or
before January 31 each year indicating no major escapement occurred.
(1) Gulf aquaculture permit number;
(2) Name and phone number of a contact person;
(3) Duration and specific location of escapement, including the
number of cages or net pens involved;
(4) Cause(s) of escapement;
(5) Number, size, and percent of fish, by species, that escaped;
and
(6) Actions being taken to address the escapement.
(C) Pathogens. Report, within 24 hours of diagnosis, all findings
or suspected findings of any OIE-reportable pathogen episodes or
pathogens that are identified as reportable pathogens in the NAAHP, as
implemented by the USDA and U.S. Departments of Commerce and Interior,
that are known to infect the cultured species. The report must include
the items in paragraphs (a)(1)(i)(C)(1) through (6) of this section and
may be submitted electronically via the Web site. If no finding or
suspected finding of an OIE-reportable pathogen episode occurs during a
given year, an annual report must be submitted via the Web site on or
before January 31 each year indicating no finding or suspected finding
of an OIE-reportable pathogen episode occurred. See Sec. 622.108(a)(1)
regarding actions NMFS may take to address a pathogen episode.
(1) OIE-reportable pathogen;
(2) Percent of cultured animals infected;
(3) Findings of the aquatic animal health expert;
(4) Plans for submission of specimens for confirmatory testing (as
required by the USDA);
(5) Testing results (when available); and
(6) Actions being taken to address the reportable pathogen episode.
(D) Harvest notification. Report the time, date, and weight of fish
to be harvested from an aquaculture facility at least 72 hours prior to
harvest. This information may be submitted electronically via the Web
site or via phone.
(E) Landing information. Report the intended time, date, and port
of landing for any vessel landing fish harvested from an aquaculture
facility at least 72 hours prior to landing. This information may be
submitted electronically via the Web site or via phone. The person
landing the cultured animals must validate the dealer transaction
report required in paragraph (a)(2)(i) of this section by entering the
unique PIN number of the Gulf aquaculture permit holder from whom the
fish were received when the transaction report is submitted.
(F) Change of hatchery. Report any change in hatcheries used for
obtaining fingerlings or other juvenile animals and provide updated
names and addresses or specific locations (if no address is available)
for the applicable hatcheries no later than 30 days after any such
change occurs. This information may be submitted electronically via the
Web site.
(G) Entanglements or interactions with marine mammals, endangered
species, or migratory birds. Report any entanglement or interaction
with marine mammals, endangered species, or migratory birds within 24
hours of the event. The report must include the items included in
paragraphs (a)(1)(i)(G)(1) through (5) of this section and may be
submitted electronically via the Web site. If no entanglement or
interaction with marine mammals, endangered species, or migratory birds
occurs during a given year, an annual report must be submitted via the
Web site on or before January 31 each year indicating no entanglement
or interaction occurred.
(1) Date, time, and location of entanglement or interaction.
[[Page 1797]]
(2) Species entangled or involved in interactions and number of
individuals affected;
(3) Number of mortalities and acute injuries observed;
(4) Cause of entanglement or interaction; and
(5) Actions being taken to prevent future entanglements or
interactions.
(H) Feed invoices. The permittee must keep the original purchase
invoices for feed or copies of purchase invoices for feed, make them
available to NMFS or an authorized officer upon request, and be
maintained for a period of 3 years.
(I) Any other reporting requirements specified by the RA for
evaluating and assessing the environmental impacts of an aquaculture
operation.
(ii) Other reporting requirements. In addition to the reporting
requirements in paragraph (a)(1)(i) of this section, an aquaculture
facility owner or operator must comply with the following reporting
requirements:
(A) Provide NMFS with current copies of all valid state and Federal
permits (e.g., ACOE Section 10 permit, EPA NPDES permit) required for
conducting offshore aquaculture and report any changes applicable to
those permits.
(B) Provide NMFS with current copies of all valid state and Federal
aquaculture permits for each hatchery from which fingerlings or other
juvenile animals are obtained and report any changes applicable to
those permits within 30 days.
(iii) Recordkeeping requirements. An aquaculture facility owner or
operator must comply with the following recordkeeping requirements:
(A) Maintain for the most recent 3 years and make available to NMFS
or an authorized officer, upon request, monitoring reports related to
aquaculture activities required by all other state and Federal permits
(e.g., EPA NPDES permit) required for conducting offshore aquaculture.
(B) Maintain records of all sales of fish for the most recent 3
years and make that information available to NMFS or an authorized
officer upon request. Sale records must include the species and
quantity of fish sold in pounds round weight; estimated average weight
of fish sold to the nearest tenth of a pound by species; date sold; and
the name of the entity to whom fish were sold.
(2) Aquaculture dealer recordkeeping and reporting requirements. A
dealer who purchases fish from an aquaculture facility in the Gulf EEZ
must:
(i) Complete a landing transaction report for each landing and sale
of cultured animals via the Web site at the time of the transaction in
accordance with reporting form and instructions provided on the Web
site. This report includes date, time, and location of transaction;
information necessary to identify the Gulf aquaculture permit holder,
vessel, and dealer involved in the transaction; quantity, in pounds
round weight, and estimated average weight of each species landed to
the nearest tenth of a pound; and average price paid for cultured
animals landed and sold by market category. A dealer must maintain such
record for at least 3 years after the receipt date and must make such
record available for inspection upon request to NMFS or an authorized
officer.
(ii) After the dealer submits the report and the information has
been verified, the Web site will send a transaction approval code to
the dealer and the aquaculture permit holder.
(b) [Reserved]
Sec. 622.103 Aquaculture facilities.
(a) Siting requirements and conditions. (1) No aquaculture facility
may be sited in the Gulf EEZ within a marine protected area, marine
reserve, Habitat Area of Particular Concern, Special Management Zone,
permitted artificial reef area specified in this part or a coral area
as defined in Sec. 622.2.
(2) No aquaculture facility may be sited within 1.6 nautical miles
(3 km) of another aquaculture facility and all structures associated
with the facility must remain within the sited boundaries.
(3) To allow fallowing and rotation of approved aquaculture systems
within a site permitted by the ACOE and approved by NMFS, the permitted
site for the aquaculture facility must be at least twice as large as
the combined area of the aquaculture systems.
(4) The RA will evaluate siting criteria for proposed offshore
aquaculture operations on a case-by-case basis. Criteria considered by
the RA during case-by-case review include data, analyses, and results
of the required baseline environmental survey as specified in Sec.
622.101(a)(2)(v); depth of the site; the frequency of harmful algal
blooms or hypoxia at the proposed site; marine mammal migratory
pathways; the location of the site relative to commercial and
recreational fishing grounds and important natural fishery habitats
(e.g., seagrasses). The RA may deny use of a proposed aquaculture site
based on a determination by the RA that such a site poses significant
risks to wild fish stocks, essential fish habitat, endangered or
threatened species, marine mammals, will result in user conflicts with
commercial or recreational fishermen or other marine resource users,
will result in user conflicts with the OCS energy program, the depth of
the site is not sufficient for the approved aquaculture system,
substrate and currents at the site will inhibit the dispersal of wastes
and effluents, the site is prone to low dissolved oxygen or harmful
algal blooms, or other grounds inconsistent with FMP objectives or
applicable Federal laws. The information used for siting a facility
with regard to proximity to commercial and recreational fishing grounds
includes electronic logbooks from the shrimp fishery, logbook reported
fishing locations, siting information from previously proposed or
permitted aquaculture facilities, and other data that would provide
information regarding how the site would interact with other fisheries.
The RA's determination will be based on consultations with appropriate
NMFS and NOAA offices and programs, public comment, as well as siting
and other information submitted by the permit applicant. If a proposed
site is denied, the RA will deny the Gulf Aquaculture Permit and
provide this determination as required by Sec. 622.101(d)(2)(ii).
(b) [Reserved]
Sec. 622.104 Restricted access zones.
(a) Establishment of restricted access zones. NMFS will establish a
restricted access zone for each aquaculture facility. The boundaries of
the restricted access zone will correspond with the coordinates listed
on the approved ACOE Section 10 permit associated with the aquaculture
facility.
(b) Prohibited activities within a restricted access zone. No
recreational fishing or commercial fishing, other than aquaculture, may
occur in the restricted access zone. No fishing vessel may operate in
or transit through the restricted access zone unless the vessel has on
board a copy of the aquaculture facility's permit with an original
signature, i.e., not a copy of the signature, of the permittee.
(c) Marking requirement. The permittee must mark the restricted
access zone with a floating device such as a buoy at each corner of the
zone, as authorized by the USCG. Each floating device must clearly
display the aquaculture facility's permit number and the words
``RESTRICTED ACCESS'' in block characters at least 6 inches (15.2 cm)
in height and in a color that contrasts with the color of the floating
device.
[[Page 1798]]
Sec. 622.105 Allowable aquaculture systems and species.
(a) Allowable aquaculture systems. The RA will evaluate each
proposed aquaculture system on a case-by-case basis and approve or deny
use of the proposed system for offshore marine aquaculture in the Gulf
EEZ. Proposed aquaculture systems may consist of cages, net pens,
enclosures or other structures and gear which are used to culture
marine species. The RA will evaluate the structural integrity of a
proposed aquaculture system based, in part, on the required
documentation (e.g., engineering analyses, computer and physical
oceanographic model results) submitted by the applicant to assess the
ability of the aquaculture system(s) (including moorings) to withstand
physical stresses associated with major storm events, e.g. hurricanes,
storm surge. The RA also will evaluate the proposed aquaculture system
and its operations based on the potential to pose significant risks to
essential fish habitat, endangered or threatened species, marine
mammals, wild fish stocks, public health, or safety. The RA may deny
use of a proposed aquaculture system or specify conditions for using an
aquaculture system based on a determination of such significant risks.
The RA's evaluation will be based on information provided by the
applicant as well as consultations with appropriate NMFS and NOAA
offices and programs. If the RA denies use of a proposed aquaculture
system or specifies conditions for its use, the RA will deny the Gulf
Aquaculture Permit and provide this determination as required by Sec.
622.101(d)(2)(ii).
(b) Allowable aquaculture species. Only the following federally
managed species that are native to the Gulf and are not genetically
engineered or transgenic, may be cultured in an aquaculture facility in
the Gulf EEZ:
(1) Species of coastal migratory pelagic fish, as defined in Sec.
622.2.
(2) Species of Gulf reef fish, as listed in appendix A to this
part.
(3) Red drum, Sciaenops ocellatus.
(4) Spiny lobster, Panulirus argus.
Sec. 622.106 Aquaculture operations.
(a) Operational requirements and restrictions. An owner or operator
of an aquaculture facility for which a Gulf aquaculture permit has been
issued must comply with the following operational requirements and
restrictions.
(1) Minimum start-up requirement. At least 25 percent of
aquaculture systems approved for use at a specific aquaculture facility
at the time of permit issuance must be placed in the water at the
permitted aquaculture site within 2 years of issuance of the Gulf
aquaculture permit, and allowable species for aquaculture must be
placed in the aquaculture system(s) within 3 years of issuance of the
permit. Failure to comply with these requirements will be grounds for
revocation of the permit. A permittee may request a 1-year extension to
the above time schedules in the event of a catastrophe (e.g.,
hurricane). Requests must be made in writing and submitted to the RA.
The RA will approve or deny the request after determining if
catastrophic conditions directly caused or significantly contributed to
the permittee's failure to meet the required time schedules. The RA
will provide the determination and the basis for it, in writing, to the
permittee.
(2) Marking requirement. The permittee must maintain a minimum of
one properly functioning electronic locating device (e.g., GPS device,
pinger with radio signal) on each approved aquaculture system placed in
the water at the aquaculture facility.
(3) Restriction on allowable hatcheries. A permittee may only
obtain juvenile animals for grow-out at an aquaculture facility from a
hatchery located in the U.S.
(4) Hatchery certifications. (i) The permittee must obtain and
submit to NMFS a signed certification from the owner(s) of the
hatchery, from which fingerlings or other juvenile animals are
obtained, indicating the broodstock have been individually marked or
tagged (e.g., via a Passive Integrated Transponder (PIT), coded wire,
dart, or internal anchor tag) to allow for identification of those
individuals used in spawning.
(ii) The permittee also must obtain and submit to NMFS signed
certification from the owner(s) of the hatchery indicating that fin
clips or other genetic materials were collected and submitted for each
individual brood animal in accordance with procedures specified by
NMFS.
(iii) The certifications required in paragraphs (a)(4)(i) and (ii)
of this section must be provided to NMFS by the permittee each time
broodstock are acquired by the hatchery or used for spawning.
(5) Health certification. Prior to stocking fish in an approved
aquaculture system at an aquaculture facility in the Gulf EEZ, the
permittee must provide NMFS a copy of a health certificate (suggested
form is USDA/Animal and Plant Health Inspection Service (APHIS) VS 17-
141, OMB 0579-0278) signed by an aquatic animal health expert, as
defined in Sec. 622.101(a)(2)(xv), certifying that the fish have been
inspected and are visibly healthy and the source population is test
negative for OIE pathogens specific to the cultured species and
pathogens identified as reportable pathogens in the NAAHP as
implemented by the USDA and U.S. Departments of Commerce and Interior.
(6) Use of drugs and other chemicals or agents. Use of drugs,
pesticides, and biologics must comply with all applicable Food and Drug
Administration (FDA), EPA, and USDA requirements (e.g., Federal, Food,
Drug and Cosmetic Act, 21 U.S.C. 301 et seq.; Clean Water Act, 40 CFR
part 122; 9 CFR parts 101 through 124; 21 CFR parts 500 through 599;
and 40 CFR parts 150 through 189).
(7) Feed practices and monitoring. The permittee must conduct feed
monitoring and management practices in compliance with EPA regulations
at 40 CFR 451.21, if applicable to the facility.
(8) Monitoring and reporting compliance. The permittee must monitor
and report the environmental survey parameters at the aquaculture
facility consistent with NMFS' guidelines that will be available on the
Web site and from the RA upon request. The permittee also must comply
with all applicable monitoring and reporting requirements specified in
their valid ACOE Section 10 permit and valid EPA NPDES permit.
(9) Inspection for protected species. The permittee must regularly
inspect approved aquaculture systems, including mooring and anchor
lines, for entanglements or interactions with marine mammals, protected
species, and migratory birds. The frequency of inspections will be
specified by NMFS as a condition of the permit. If entanglements or
interactions are observed, they must be reported as specified in Sec.
622.102(a)(1)(i)(G).
(10) Fishing gear stowage requirement. Any vessel transporting
cultured animals to or from an aquaculture facility must stow fishing
gear as follows:
(i) A longline may be left on the drum if all gangions and hooks
are disconnected and stowed below deck. Hooks cannot be baited. All
buoys must be disconnected from the gear; however, buoys may remain on
deck.
(ii) A trawl net may remain on deck, but trawl doors must be
disconnected from the trawl gear and must be secured.
(iii) A gillnet must be left on the drum. Any additional gillnets
not attached to the drum must be stowed below deck.
[[Page 1799]]
(iv) A rod and reel must be removed from the rod holder and stowed
securely on or below deck. Terminal gear (i.e., hook, leader, sinker,
flasher, or bait) must be disconnected and stowed separately from the
rod and reel. Sinkers must be disconnected from the down rigger and
stowed separately.
(v) All other fishing gear must be stored below deck or in an area
where it is not normally used or readily available for fishing.
(11) Prohibition of possession of wild fish in restricted access
zone. Except for broodstock, authorized pursuant to paragraph (a)(16)
of this section, possession of any wild fish at or within the
boundaries of an aquaculture facility's restricted access zone is
prohibited.
(12) Prohibition of possession of wild fish aboard vessels,
vehicles, or aircraft associated with aquaculture operations.
Possession and transport of any wild fish aboard an aquaculture
operation's transport or service vessels, vehicles, or aircraft is
prohibited while engaged in aquaculture related activities, except when
harvesting broodstock as authorized by NMFS.
(13) Maintaining fish intact prior to landing. Cultured finfish
must be maintained whole with heads and fins intact until landed on
shore. Such fish may be eviscerated, gilled, and scaled, but must
otherwise be maintained in a whole condition. Spiny lobster must be
maintained whole with the tail intact until landed on shore.
(14) Restriction on offloading. For the purpose of this paragraph,
offload means to remove cultured animals from a vessel following
harvest from an offshore aquaculture facility. Cultured animals may
only be offloaded between 6 a.m. and 6 p.m., local time.
(15) Bill of lading requirement. Any cultured animals harvested
from an aquaculture facility and being transported must be accompanied
by the applicable bill of lading through landing ashore and the first
point of sale. The bill of lading must include species name, quantity
in numbers or pounds by species, date and location of landing, Gulf
aquaculture permit number of the aquaculture facility from which the
fish were harvested, and name and address of purchaser.
(16) Request to harvest broodstock. (i) At least 30 days prior to
each time a permittee or their designee intends to harvest broodstock
from the Gulf, including from state waters, that would be used to
produce juvenile fish for an aquaculture facility in the Gulf EEZ, the
permittee must submit a request to the RA via the Web site using a Web-
based form. The information submitted on the form must include the
number, species, and size of fish to be harvested; methods, gear, and
vessels (including USCG documentation or state registration number) to
be used for capturing, holding, and transporting broodstock; date and
specific location of intended harvest; and the location to which
broodstock would be delivered.
(ii) Allowable methods or gear used for broodstock capture in the
EEZ include those identified for each respective fishery in Sec.
600.725, except red drum, which may be harvested only with handline or
rod and reel.
(iii) The RA may deny or modify a request for broodstock harvest if
allowable methods or gear are not proposed for use, the number of fish
harvested for broodstock is more than necessary for purposes of
spawning and rearing activities, or the harvest will be inconsistent
with FMP objectives or other Federal laws. If a broodstock collection
request is denied or modified, the RA will provide the determination
and the basis for it, in writing to the permittee. If a broodstock
collection request is approved, the permittee must submit a report to
the RA including the number and species of broodstock harvested, their
size (length and weight), and the geographic location where the
broodstock were captured. The report must be submitted on a Web-based
form available on the Web site no later than 15 days after the date of
harvest.
(iv) Notwithstanding the requirements in Sec. 622.106(a)(16), all
proposed harvest of broodstock from state waters also must comply with
all state laws applicable to the harvest of such species.
(17) Authorized access to aquaculture facilities. A permittee must
provide NMFS employees and authorized officers access to an aquaculture
facility to conduct inspections or sampling necessary to determine
compliance with the applicable regulations relating to aquaculture in
the Gulf EEZ. In conducting the inspections, NMFS may enter into
cooperative agreements with States, may delegate the inspection
authority to any State, or may contract with any non-Federal Government
entities. As a condition of the permit, NMFS may also require the
permittee to contract a non-Federal Government third party approved by
the RA if the RA agrees to accept the third party inspection results.
The non-Federal Government third party may not be the same entity as
the permittee.
(b) [Reserved]
Sec. 622.107 Limitation on aquaculture production.
No individual, corporation, or other entity will be authorized to
produce more than 12.8 million lb (5.8 million kg), round weight, of
cultured species annually from permitted aquaculture facilities in the
Gulf EEZ. Production of juvenile fish by a hatchery in the Gulf EEZ
will not be counted toward this limitation because those fish would be
accounted for subsequently via reported harvest at the aquaculture
facility where grow out occurs.
Sec. 622.108 Remedial actions.
(a) Potential remedial actions by NMFS. In addition to potential
permit sanctions and denials in accordance with subpart D of 15 CFR
part 904, NMFS may take the following actions, as warranted, to avoid
or mitigate adverse impacts associated with aquaculture in the Gulf
EEZ.
(1) Actions to address pathogen episodes. NMFS, in cooperation with
USDA's APHIS, may order movement restrictions and/or the removal of all
cultured animals from an approved aquaculture system upon confirmation
by a USDA's APHIS reference laboratory that an OIE-reportable pathogen,
or additional pathogens that are subsequently identified as reportable
pathogens in the NAAHP exists and USDA's APHIS and NMFS determine the
pathogen poses a significant threat to the health of wild or cultured
aquatic organisms.
(2) Actions to address genetic issues. NMFS may sample cultured
animals to determine genetic lineage and, upon a determination that
genetically engineered or transgenic animals were used or possessed at
an aquaculture facility, will order the removal of all cultured animals
of the species for which such determination was made. In conducting the
genetic testing to determine that all broodstock or progeny of such
broodstock will be or were originally harvested from U.S. waters of the
Gulf, will be or were from the same population or sub-population that
occurs where the facility is located, and that juveniles stocked in
offshore aquaculture systems are the progeny of wild broodstock, or
other genetic testing necessary to carry out the requirements of the
FMP, NMFS may enter into cooperative agreements with States, may
delegate the testing authority to any State, or may contract with any
non-Federal Government entities. As a condition of the permit, NMFS may
also require the permittee to contract a non-Federal Government third
party approved by the RA if the RA agrees to accept the third party
testing results.
[[Page 1800]]
The non-Federal Government third party may not be the same entity as
the permittee.
(b) [Reserved]
Sec. 622.109 Adjustment of management measures.
In accordance with the framework procedures of the FMP for
Regulating Offshore Marine Aquaculture in the Gulf of Mexico, the RA
may establish or modify the items in paragraph (a) of this section for
offshore marine aquaculture.
(a) For the entire aquaculture fishery: MSY, OY, permit application
requirements, operational requirements and restrictions, including
monitoring requirements, aquaculture system requirements, siting
requirements for aquaculture facilities, and recordkeeping and
reporting requirements.
(b) [Reserved]
[FR Doc. 2016-00147 Filed 1-11-16; 4:15 pm]
BILLING CODE 3510-22-P